subject:"Re\: The President and the Pope"

I put the proposition badly.  The point was that there is probably a
difference between asking for help for a non-partisan program and help
for a partisan program.  Bush's appeal is largely, although not
entirely, partisan.  There may or may not be a "constitutional"
difference, although, as I mentioned in another of this flurry of posts
from me, I am intrigued by Bruce Ackerman's thesis about the New Deal
(and indeed the Constitution itself).  He sees them as ultra vires
constitution-writing.  The president can ask the Pope for anything he
wants to, and the Pope can grant the request or not.  The question
becomes, at the level of constitutionalism, whether or not the American
polity will come to accept an alliance of Republicans and the Catholic
hierarchy as "constitutive."  If it does, then there has been, if I
understand Ackerman, an amendment to the Constitution.

If LBJ had asked church leaders to back a civil rights agenda, could one
describe the probable result as an alliance between Democrats and these
Church groups?  I don't think so.  It is true, however, as LBJ
predicted, that many American whites abandoned the Democratic Party
because of its commitment to civil rights.   But LBJ's "intention" in
the hypothetical could not possibly be the creation of a partisan
church-state alliance.  He regretted the fact that civil rights became
yoked to the Democratic Party.  The present situation by contrast bids
fair to produce a Republican-Catholic hierarchy alliance if the Pope
were to agree with Bush's request (and that certainly appears to be
precisely what Bush wants).  I think that that difference matters, at
least as a matter of constitutional principle.


 

-Original Message-
From: Volokh, Eugene [mailto:[EMAIL PROTECTED] 
Sent: Wednesday, June 16, 2004 5:08 PM
To: Law & Religion issues for Law Academics
Subject: RE: The President and the Pope

Hmm -- I haven't gotten the same sense; might I ask which
particular presidential initiative (as opposed to broad policy goals
related to abortion, gay marriage, etc.) the President was asking the
Pope to support?

More broadly, would there be a *constitutionally significant*
difference there?  Is it that LBJ would have been entitled to say "tell
your congregations to take seriously Christ's teachings of dignity, and
renounce racism and support civil rights," but would have violated the
Constitution by saying "tell your congregations to take seriously
Christ's teachings of dignity, and renounce racism and support civil
rights by supporting laws that ban discrimination and an end to
segregated schools"?

Eugene


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RE: The President and the Pope

We could add one more element: if the president is trying to rewrite or
recast the Constitution.  (I have in mind Bruce Ackerman's interesting
thoughts on the subject of informal (if not ultra vires) amendments of
the Constitution). 

-Original Message-
From: Mark Graber [mailto:[EMAIL PROTECTED] 
Sent: Tuesday, June 15, 2004 5:40 PM
To: [EMAIL PROTECTED]
Subject: RE: The President and the Pope

So
let me state a more general principle:  A president should ask a
religious leader for support on a political issue only if the issue is
not partisan or the president firmly believes that no morally decent
person could disagree with the president's stance.

MAG

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RE: The President and the Pope

2004-06-16 Thread Volokh, Eugene

Hmm -- I haven't gotten the same sense; might I ask which
particular presidential initiative (as opposed to broad policy goals
related to abortion, gay marriage, etc.) the President was asking the
Pope to support?

More broadly, would there be a *constitutionally significant*
difference there?  Is it that LBJ would have been entitled to say "tell
your congregations to take seriously Christ's teachings of dignity, and
renounce racism and support civil rights," but would have violated the
Constitution by saying "tell your congregations to take seriously
Christ's teachings of dignity, and renounce racism and support civil
rights by supporting laws that ban discrimination and an end to
segregated schools"?

Eugene

> -Original Message-
> From: [EMAIL PROTECTED] 
> [mailto:[EMAIL PROTECTED] On Behalf Of 
> Newsom Michael
> Sent: Wednesday, June 16, 2004 1:57 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: The President and the Pope
> 
> 
> There is a difference between asking the Pope to support 
> broad policy goals and asking the Pope to support a 
> particular presidential initiative.  My sense of the reports 
> is that Bush's remarks tended toward the second position, not 
> the first.
> 
> -Original Message-
> From: Volokh, Eugene [mailto:[EMAIL PROTECTED] 
> Sent: Monday, June 14, 2004 11:32 AM
> To: Law & Religion issues for Law Academics
> Subject: RE: The President and the Pope
> 
> A question:  Say that in the 1960s, the President told a 
> group of white Protestant leaders that they needed to tell 
> their congregations to take seriously Christ's teachings of 
> human dignity, and to renounce racism and support civil 
> rights.  Or say that in 2004 in an alternate universe, 
> President Gore told religious groups that they should tell 
> their congregations about the importance of protecting God's 
> creationagainst environmental disaster.  Constitutional problem?
> 
> Eugene
> 
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RE: The President and the Pope

There is a difference between asking the Pope to support broad policy
goals and asking the Pope to support a particular presidential
initiative.  My sense of the reports is that Bush's remarks tended
toward the second position, not the first.

-Original Message-
From: Volokh, Eugene [mailto:[EMAIL PROTECTED] 
Sent: Monday, June 14, 2004 11:32 AM
To: Law & Religion issues for Law Academics
Subject: RE: The President and the Pope

A question:  Say that in the 1960s, the President told a group of white
Protestant leaders that they needed to tell their congregations to take
seriously Christ's teachings of human dignity, and to renounce racism
and support civil rights.  Or say that in 2004 in an alternate universe,
President Gore told religious groups that they should tell their
congregations about the importance of protecting God's creationagainst
environmental disaster.  Constitutional problem?

Eugene

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RE: The President and the Pope










What is the mortal sin that Kerry is
guilty of?  I assume that it takes being in
such a state to warrant a Catholic reaching the decision that he or she should not take communion?

 

-Original Message-
From: Amar D. Sarwal
[mailto:[EMAIL PROTECTED] 
Sent: Monday, June 14, 2004 10:25 AM
To: Law & Religion issues for
Law Academics
Subject: Re: The President and the
Pope

 



 





The
dilemma for the American bishops is not whether Kerry should be taking
communion.  He should not.  The dilemma is whether the Church should
withhold communion in light of his refusal to abide by Church norms.





 





It is
interesting that this listserv notices every religious/political action of the
President, but not his opponents, such as the attempt by 47 Democratic/Catholic
lawmakers to browbeat the bishops into a favorable position or Kerry's
meetings with influential bishops around the country (presumably to make his
case).  





 





Amar D.
Sarwal
D.C. APPEALS
1050 Connecticut Avenue, N.W.
10th Floor
Washington, D.C. 20036
http://www.dcappeals.com
Direct Dial:  (202) 517-6705
Facsimile:  (202) 318-8017







-
Original Message - 





From: [EMAIL PROTECTED] 





To: [EMAIL PROTECTED]






Sent: Monday, June 14, 2004 9:02 AM





Subject: Re:
The President and the Pope





 









In a message dated 6/14/2004 8:45:50 AM Eastern Standard Time, [EMAIL PROTECTED] writes:





I'm
asking whether such conduct would be appropriate for a President who took his
constitutional obligations seriously.





Does
this ask for our intuitions on the appropriateness of such conduct
or a theory
of what "is appropriate for a President who took his constitutional
obligations seriously"? Or both?





 





How
would Marty's examples differ from the President asking the Pope to ask
religious leaders around the world to denounce terrorism? Or suppose the
President opposed a war in Iraq conducted
by Nato without assistance from the United
  States.  Would it be
'appropriate' for the President to ask the Pope to urge Nato leaders or
bishops in Europe and the United
  States to speak out against
the war?





 





It
is difficult (at least for me) to find even soft (non-justiciable) reasons
against such presidential conduct.  This does not mean that I would
hesitate to vote against a president who asked the Pope to instruct
American bishops to denounce action I approve of. 





 





Bobby


Robert Justin Lipkin
Widener University School of Law
Delaware









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RE: The President and the Pope

Well, that seems like an odd constitutional principle to me,
even if we're just talking about judicially unenforceable constitutional
principles.  Why shouldn't Presidents be entitled to enlist moral
authorities -- religious or not -- as political allies even in
situations where a sincere debate between decent people is possible?

Say the issue involves not racism, but, say, environmentalism,
and say that the President agrees that decent people might not take the
environmental views that he takes.  Why is it unconstitutional for him
to try to enlist religious moral leaders in his cause?  Why should he be
more constrained than some other President, who is so fervent in his
environmentalism that he has only moral contempt for those who disagree
with him?

Eugene

> -Original Message-
> From: [EMAIL PROTECTED] 
> [mailto:[EMAIL PROTECTED] On Behalf Of Mark Graber
> Sent: Tuesday, June 15, 2004 2:40 PM
> To: [EMAIL PROTECTED]
> Subject: RE: The President and the Pope
> 
> 
> I do think the different roles of a national executive is a 
> constitutional point, though not a point of constitutional 
> law.  At least Aristotle would have thought so, but perhaps 
> not John Marshall.  I note this because Bobby Lipkin's 
> original post seemed to ask for grounds on which the 
> President's actions might be a breach of constitutional 
> ethics, not a breach of constitutional law (which is the 
> usual subject of this list).
> 
> On LBJ and racism.  I think his actions justified only in 
> retrospect or on the assumption that racism is a significant 
> enough evil that justifies violating constitutional norms.  I 
> confess part of my objection to Bush's behavior is I really 
> do not think this administration thinks that homosexuality is 
> all that bad, but is using the issue cynically for political 
> support.  But people may disagree.  So let me state a more 
> general principle:  A president should ask a religious leader 
> for support on a political issue only if the issue is not 
> partisan or the president firmly believes that no morally 
> decent person could disagree with the president's stance.
> 
> MAG
> 
> >>> [EMAIL PROTECTED] 06/15/04 5:00 PM >>>
>   That's a reasonable argument about what's good 
> politics, or The Right Thing To Do -- though there are of 
> course plausible counterarguments.  On the other hand, I find 
> it hard to see how it's even a "constitutional point," in the 
> sense of setting forth constitutional principles.  It seems 
> to me more of the "politics stops at the water's edge" variety.
> 
>   Incidentally, Mark, what do you think of the examples 
> and hypotheticals I gave in my other post, for instance if 
> LBJ in 1964, conferring with a leading official of a mostly 
> American-based church, urged the person to take a stand in 
> favor of civil rights and against racism?
> 
>       Eugene
> 
> > -Original Message-
> > From: [EMAIL PROTECTED]
> > [mailto:[EMAIL PROTECTED] On Behalf Of Mark Graber
> > Sent: Tuesday, June 15, 2004 6:54 AM
> > To: [EMAIL PROTECTED]
> > Subject: Re: The President and the Pope
> > 
> > 
> > Might this be a relevant constitutional point, though not a
> > point of constitutional law.
> > 
> > The president plays many different roles.  Sometimes more
> > partisan roles are appropriate.  So there is nothing 
> > unpresidential about a post 1896 president urging Americans 
> > to elect Republicans to Congress (but see Tulis, THE 
> > RHETORICAL PRESIDENT, suggesting a constitutional norm in the 
> > nineteenth century against such behavior).  Other times, the 
> > president is clearly the representative of the entire nation. 
> >  So campaign rhetoric would have been inappropriate at 
> > Reagan's funeral.
> > 
> > Strikes me that when the President confers with the Pope,
> > representative of the entire nation is the appropriate hat.  
> > Urging the Pope to fight terrorism is not problemmatic, 
> > because that is a non-partisan issue in the United States.  
> > Urging the Pope to speak out more clear against gay marriage 
> > or capital punishment is more problematic.
> > 
> > Is there anything to this admitted intuition.
> > 
> > MAG
> > ___
> > To post, send message to [EMAIL PROTECTED]
> > To subscribe, unsubscribe, change options, or get password,
> > see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
> > 
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RE: The President and the Pope

2004-06-15 Thread Mark Graber

I do think the different roles of a national executive is a
constitutional point, though not a point of constitutional law.  At
least Aristotle would have thought so, but perhaps not John Marshall.  I
note this because Bobby Lipkin's original post seemed to ask for grounds
on which the President's actions might be a breach of constitutional
ethics, not a breach of constitutional law (which is the usual subject
of this list).

On LBJ and racism.  I think his actions justified only in retrospect or
on the assumption that racism is a significant enough evil that
justifies violating constitutional norms.  I confess part of my
objection to Bush's behavior is I really do not think this
administration thinks that homosexuality is all that bad, but is using
the issue cynically for political support.  But people may disagree.  So
let me state a more general principle:  A president should ask a
religious leader for support on a political issue only if the issue is
not partisan or the president firmly believes that no morally decent
person could disagree with the president's stance.

MAG

>>> [EMAIL PROTECTED] 06/15/04 5:00 PM >>>
That's a reasonable argument about what's good politics, or The
Right Thing To Do -- though there are of course plausible
counterarguments.  On the other hand, I find it hard to see how it's
even a "constitutional point," in the sense of setting forth
constitutional principles.  It seems to me more of the "politics stops
at the water's edge" variety.

Incidentally, Mark, what do you think of the examples and
hypotheticals I gave in my other post, for instance if LBJ in 1964,
conferring with a leading official of a mostly American-based church,
urged the person to take a stand in favor of civil rights and against
racism?

Eugene

> -Original Message-
> From: [EMAIL PROTECTED] 
> [mailto:[EMAIL PROTECTED] On Behalf Of Mark Graber
> Sent: Tuesday, June 15, 2004 6:54 AM
> To: [EMAIL PROTECTED]
> Subject: Re: The President and the Pope
> 
> 
> Might this be a relevant constitutional point, though not a 
> point of constitutional law.
> 
> The president plays many different roles.  Sometimes more 
> partisan roles are appropriate.  So there is nothing 
> unpresidential about a post 1896 president urging Americans 
> to elect Republicans to Congress (but see Tulis, THE 
> RHETORICAL PRESIDENT, suggesting a constitutional norm in the 
> nineteenth century against such behavior).  Other times, the 
> president is clearly the representative of the entire nation. 
>  So campaign rhetoric would have been inappropriate at 
> Reagan's funeral.
> 
> Strikes me that when the President confers with the Pope, 
> representative of the entire nation is the appropriate hat.  
> Urging the Pope to fight terrorism is not problemmatic, 
> because that is a non-partisan issue in the United States.  
> Urging the Pope to speak out more clear against gay marriage 
> or capital punishment is more problematic.
> 
> Is there anything to this admitted intuition.
> 
> MAG
> ___
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RE: The President and the Pope

That's a reasonable argument about what's good politics, or The
Right Thing To Do -- though there are of course plausible
counterarguments.  On the other hand, I find it hard to see how it's
even a "constitutional point," in the sense of setting forth
constitutional principles.  It seems to me more of the "politics stops
at the water's edge" variety.

Incidentally, Mark, what do you think of the examples and
hypotheticals I gave in my other post, for instance if LBJ in 1964,
conferring with a leading official of a mostly American-based church,
urged the person to take a stand in favor of civil rights and against
racism?

Eugene

> -Original Message-
> From: [EMAIL PROTECTED] 
> [mailto:[EMAIL PROTECTED] On Behalf Of Mark Graber
> Sent: Tuesday, June 15, 2004 6:54 AM
> To: [EMAIL PROTECTED]
> Subject: Re: The President and the Pope
> 
> 
> Might this be a relevant constitutional point, though not a 
> point of constitutional law.
> 
> The president plays many different roles.  Sometimes more 
> partisan roles are appropriate.  So there is nothing 
> unpresidential about a post 1896 president urging Americans 
> to elect Republicans to Congress (but see Tulis, THE 
> RHETORICAL PRESIDENT, suggesting a constitutional norm in the 
> nineteenth century against such behavior).  Other times, the 
> president is clearly the representative of the entire nation. 
>  So campaign rhetoric would have been inappropriate at 
> Reagan's funeral.
> 
> Strikes me that when the President confers with the Pope, 
> representative of the entire nation is the appropriate hat.  
> Urging the Pope to fight terrorism is not problemmatic, 
> because that is a non-partisan issue in the United States.  
> Urging the Pope to speak out more clear against gay marriage 
> or capital punishment is more problematic.
> 
> Is there anything to this admitted intuition.
> 
> MAG
> ___
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RE: The President and the Pope

Title: Message



    I'm sorry, but I just don't quite 
understand.  What is it that's supposedly permissible under this model, and 
supposedly impermissible?
 
    Also, I take it that much Christian political rhetoric takes the 
form:  "Good Christians ought to [oppose racism / support sexual abstinence 
before marriage / protect the environment / support programs that help the poor 
/ oppose war]."  The speakers often recognize that different Christian 
groups disagree on this, but their argument is that theirs is the right 
Christian perspective.  (This is pretty similar in this respect about 
arguments about what good liberals, or good conservatives, or good Americans, or 
just decent people should think.)  So I'm not sure that there is even much 
of a meaningful distinction between implicitly endorsing one set of varieties of 
Christianity (by saying that one attitude is good and another is bad, where the 
good attitude is endorsed by some Christian groups and opposed by others), and 
calling upon like-minded Christians to come to his support.
 
Bob O'Brien 
writes, responding to me:

  
  Eugene offered:
  >   Sorry to sound like a broken 
  record, but I wonder how this would have played out in other contexts.  
  For instance, the abolitionist movement, the civil rights movement, and 
  various anti-war and other movements have involved political-religious 
  alliances on controversial public policy questions.  (The abolitionist 
  movement was of course indeed dangerous to the republic in the short term, 
  though good in the long term.) 
   
  >If in 1963, 
  a government official called on Christian ministers to oppose racism and 
  segretation and support civil rights, and asked them to assert that good 
  Christians should oppose racism and segregation and support civil rights, 
  would this really have been unconstitutional? 
   
  Since 
  Christian ministers differed on each of these issues (in the old South 
  Christian ministers maintained Bibilical support for slavery; in the South of 
  1963 Chritian ministers continued to maintain Bibilical support for 
  segregation), it seems to me that for the President to opine about the beliefs 
  or actions of "good Christians" constitutes endorsement of one set of 
  varieties of Christianity.  However, for the President to call upon all 
  like-minded Christians to come to his support is another 
  matter.
   
   
  Bob 
  O'Brien
   
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Re: The President and the Pope

2004-06-15 Thread JMHACLJ





In a message dated 6/15/2004 3:43:22 PM Eastern Daylight Time, 
[EMAIL PROTECTED] writes:
Since Christian 
  ministers differed on each of these issues (in the old South Christian 
  ministers maintained Bibilical support for slavery; in the South of 1963 
  Chritian ministers continued to maintain Bibilical support for segregation), 
  it seems to me that for the President to opine about the beliefs or actions of 
  "good Christians" constitutes endorsement of one set of varieties of 
  Christianity.  However, for the President to call upon all like-minded 
  Christians to come to his support is another 
  matter.

For sake of historical accuracy, I would have preferred that specific 
ministers be identified, or that the word "some" appear just before "Christian 
ministers" in the quotation above.  For the rich sense of irony it would 
have provided, I would also like to have had it noted that Christian ministers 
who preached a slavery gospel had no enduring name in our country, while Charles 
Finney, who barred a slave-owner from coming to the altar until he had 
manumitted his slaves, is remembered.  And, in the double- to triple- irony 
department, it could be noted that Christian ministers who supported slavery did 
not control the legislatures or the courts of the South, and that the published 
reports of the southern courts (populated by finely trained legal minds) found 
ample justification for slavery wherever they could, including in some, but not 
all pulpits.
 
Remember, it was a Christian minister of the Gospel who preached an 
election sermon against Thomas Jefferson's election to the presidency on the 
ground that Jefferson's peculiar ethnobiology regarding "the African" meant that 
Jefferson was an apostate blasphemer who rejected the single creation of all men 
by one God.
 
Jim Henderson
Senior Counsel
ACLJ
 
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Re: The President and the Pope

2004-06-15 Thread Robert Obrien

Title: Message



Eugene offered:
>   Sorry to sound like a broken 
record, but I wonder how this would have played out in other contexts.  For 
instance, the abolitionist movement, the civil rights movement, and various 
anti-war and other movements have involved political-religious alliances on 
controversial public policy questions.  (The abolitionist movement was of 
course indeed dangerous to the republic in the short term, though good in the 
long term.) 
 
>If in 1963, a 
government official called on Christian ministers to oppose racism and 
segretation and support civil rights, and asked them to assert that good 
Christians should oppose racism and segregation and support civil rights, would 
this really have been unconstitutional? 
 
Since 
Christian ministers differed on each of these issues (in the old South Christian 
ministers maintained Bibilical support for slavery; in the South of 1963 
Chritian ministers continued to maintain Bibilical support for segregation), it 
seems to me that for the President to opine about the beliefs or actions of 
"good Christians" constitutes endorsement of one set of varieties of 
Christianity.  However, for the President to call upon all like-minded 
Christians to come to his support is another matter.
 
 
Bob 
O'Brien
 
NTMail K12 - the Mail Server for Education
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Re: The President and the Pope

2004-06-15 Thread David E. Guinn




I agree with Eugene.  The reality is that when 
a political leader is talking to a church leader s/he is doing so because the 
church leader represents a political constituancy.  While there is a place 
for public negotiations, there is also a time for private talks as well.  
In terms of attempting to negotiate sensitive problems it may be better and 
more appropriate to deal in private than in public because in our adversarial 
system the mere agreement to talk is sometimes interpreted as a political 
concession or loss of face.  It is unlikely that Jerry Falwell would have 
been willing or able to engage in a serious dialogue with lesbigay leaders in a 
public forum where he would have felt compelled to advance his position for fear 
that the media would misinterpret his meeting with them -- whereas after a 
series of private conversations both reported benefiting from their 
conversations.
 
The peace negotiations in Ireland leading up to the 
Good Friday agreement were mediated by religious leaders in private.  Would 
it have been inappropriate for Clinton to talk to them in private?  If the 
anti-abortion movement turns violent again, would it be inappropriate for Bush 
to talk privately to some leaders to seek to calm the situation?
 
As a Constitutional matter, I agree that I don't 
think this is a serious issue.  Talking with religious leaders is no more 
problematic than talking with any other political leadership.  Trying to 
coerce them would, of course, be a different matter.
 
David

  - Original Message - 
  From: 
  Mark Tushnet 
  To: Law & Religion issues for Law 
  Academics 
  Sent: Tuesday, June 15, 2004 1:07 
PM
  Subject: Re: The President and the 
  Pope
  I wonder.  If (an important qualification) there's 
  something constitutionally sensitive about the general matter we're 
  discussing, I would think that openness would diminish the sensitivity by 
  ensuring that the political leader's religious appeals were exposed to public 
  discussion -- and therefore to the public's evaluation of the constitutional 
  propriety of the leader's actions.  And, since we're agreed that this is 
  a context where political discussion is the mechanism by which matters that 
  are constitutionally sensitive are properly handled, openness would seem to 
  make that mechanism more likely to function effectively.  (Again, that's 
  why I've included qualifications about a "world of leaks" in my 
  questions.)Volokh, Eugene wrote:
  

    There may well be important political 
differences -- but I don't think there'd be a constitutional 
difference.  Sometimes, the best way to bring allies on board is by 
speaking to them publicly.  Sometimes, it's by speaking to them 
privately.  And sometimes, it's by speaking to them both 
ways.
 
    If LBJ thought in 1964 that the best way to help promote the 
Civil Rights Act was by calling a leading Southern religious leader and 
asking him to get on board (rather than appealing to him publicly, which 
might risk embarrassing him or putting him on the spot and thus alienating 
him), I don't think there'd be anything wrong with that.
 
    Eugene

  -Original Message-From: [EMAIL PROTECTED] 
  [mailto:[EMAIL PROTECTED]] 
  On Behalf Of Mark TushnetSent: Tuesday, June 15, 2004 
  10:46 AMTo: Law & Religion issues for Law 
  AcademicsSubject: Re: The President and the 
  PopeNot to ride a hobby-horse too hard, but does 
  Eugene think that there's a relevant difference between public statements 
  (which, if I interpret his examples correctly, is what he's citing) and a 
  private conversation with a religious leader (again, in a world of 
  leaks)?Volokh, Eugene wrote:
  



    I wouldn't say hypocrisy -- I'd just 
say that it's easy even for well-meaning people to (1) see the conduct 
of those they oppose as wrong and even unconstitutional, and think that 
this is so for some objective, nonpolitical reason, but (2) then to 
think better of the matter when they see similar conduct shorn of their 
strong political disagreement with the actor or the actor's proposed 
policies.  I know this has often happened to me; that's why 
considering situations where the political polarity is reversed is often 
helpful.
 
    But as to Marc's suggestion, I don't quite see why the 
distinction he proposes makes a difference.  Say that the stories 
read "Vice President Gore today called on church leaders to join with 
the administration in 'healing our land,' and to ask ministers in their 
churches to do the same," or "Mr. Clinton called on religious le

Re: The President and the Pope

2004-06-15 Thread Mark Tushnet





I wonder.  If (an important qualification) there's something
constitutionally sensitive about the general matter we're discussing, I
would think that openness would diminish the sensitivity by ensuring
that the political leader's religious appeals were exposed to public
discussion -- and therefore to the public's evaluation of the
constitutional propriety of the leader's actions.  And, since we're
agreed that this is a context where political discussion is the
mechanism by which matters that are constitutionally sensitive are
properly handled, openness would seem to make that mechanism more
likely to function effectively.  (Again, that's why I've included
qualifications about a "world of leaks" in my questions.)

Volokh, Eugene wrote:

  Message
  
  
      There may well be important political differences
-- but I don't think there'd be a constitutional difference. 
Sometimes, the best way to bring allies on board is by speaking to them
publicly.  Sometimes, it's by speaking to them privately.  And
sometimes, it's by speaking to them both ways.
   
      If LBJ thought in 1964 that the best way to help
promote the Civil Rights Act was by calling a leading Southern
religious leader and asking him to get on board (rather than appealing
to him publicly, which might risk embarrassing him or putting him on
the spot and thus alienating him), I don't think there'd be anything
wrong with that.
   
      Eugene
  
-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED]] On Behalf Of Mark
Tushnet
Sent: Tuesday, June 15, 2004 10:46 AM
    To: Law & Religion issues for Law Academics
Subject: Re: The President and the Pope


Not to ride a hobby-horse too hard, but does Eugene think that there's
a relevant difference between public statements (which, if I interpret
his examples correctly, is what he's citing) and a private conversation
with a religious leader (again, in a world of leaks)?

Volokh, Eugene wrote:

  

  
      I wouldn't say hypocrisy -- I'd just say that it's
easy even for well-meaning people to (1) see the conduct of those they
oppose as wrong and even unconstitutional, and think that this is so
for some objective, nonpolitical reason, but (2) then to think better
of the matter when they see similar conduct shorn of their strong
political disagreement with the actor or the actor's proposed
policies.  I know this has often happened to me; that's why considering
situations where the political polarity is reversed is often helpful.
   
      But as to Marc's suggestion, I don't quite see why the
distinction he proposes makes a difference.  Say that the stories read
"Vice President Gore today called on church leaders to join with the
administration in 'healing our land,' and to ask ministers in their
churches to do the same," or "Mr. Clinton called on religious leaders
to put the heat on Congress to approve the funding, and to work through
their ministers and congregations to turn up the heat," or "Clinton
called on the religious leaders . . . to rededicate themselves and
their churches to ethnic diversity and religious freedom, by urging
their ministers to educate their congregations about the importance of
ethnic diversity and religious freedom."  Would that really change the
constitutional analysis?
   
      More broadly, when you seek political allies
among leaders of any organization, you often don't just want the
leaders' voice -- you also want the leaders to bring with them their
followers, and their subordinate leaders.  That makes perfect sense,
and seems perfectly proper.  If Clinton had asked the national leaders
of any other hierarchical group -- say, an environmental group whose
local branches were closely integrated with the center -- to push for
some measure, and to get their local branch leaders to do the same, I
doubt that we would call it "interfer[ing] with the inner workings of a
[political group]."  We'd just call it asking the national leaders to
bring their entire organization to bear on an important political,
moral, or social debate.  Likewise, it seems to me, here.
   
      Eugene
  
-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED]]
On Behalf Of marc stern
Sent: Tuesday, June 15, 2004 10:24 AM
To: 'Law & Religion issues for Law Academics'
Subject: RE: The President and the Pope



I agree with
Eugene’s
implicit suggestion that there is a fair amount of hypocrisy at work
here. Nevertheless, is it not possible to distinguish what Bush did,
which was to interfere with the inner workings of a church(by
suggesting that the Vatican ought to get its bishop’s in line),rath

RE: The President and the Pope

Title: Message



    There may well be important political 
differences -- but I don't think there'd be a constitutional difference.  
Sometimes, the best way to bring allies on board is by speaking to them 
publicly.  Sometimes, it's by speaking to them privately.  And 
sometimes, it's by speaking to them both ways.
 
    If LBJ thought in 1964 that the best way to help promote the Civil 
Rights Act was by calling a leading Southern religious leader and asking him to 
get on board (rather than appealing to him publicly, which might risk 
embarrassing him or putting him on the spot and thus alienating him), I don't 
think there'd be anything wrong with that.
 
    Eugene

  
  -Original Message-From: 
  [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] 
  On Behalf Of Mark TushnetSent: Tuesday, June 15, 2004 10:46 
  AMTo: Law & Religion issues for Law 
  AcademicsSubject: Re: The President and the 
  PopeNot to ride a hobby-horse too hard, but does Eugene 
  think that there's a relevant difference between public statements (which, if 
  I interpret his examples correctly, is what he's citing) and a private 
  conversation with a religious leader (again, in a world of 
  leaks)?Volokh, Eugene wrote:
  



    I wouldn't say hypocrisy -- I'd just say 
that it's easy even for well-meaning people to (1) see the conduct of those 
they oppose as wrong and even unconstitutional, and think that this is so 
for some objective, nonpolitical reason, but (2) then to think better of the 
matter when they see similar conduct shorn of their strong political 
disagreement with the actor or the actor's proposed policies.  I know 
this has often happened to me; that's why considering situations where the 
political polarity is reversed is often helpful.
 
    But as to Marc's suggestion, I don't quite see why the 
distinction he proposes makes a difference.  Say that the stories read 
"Vice President Gore today called on church leaders to join with the 
administration in 'healing our land,' and to ask ministers in their churches 
to do the same," or "Mr. Clinton called on religious leaders to put the heat 
on Congress to approve the funding, and to work through their ministers and 
congregations to turn up the heat," or "Clinton called on the religious 
leaders . . . to rededicate themselves and their churches to ethnic 
diversity and religious freedom, by urging their ministers to educate their 
congregations about the importance of ethnic diversity and religious 
freedom."  Would that really change the constitutional 
analysis?
 
    More broadly, when you seek political allies 
among leaders of any organization, you often don't just want the 
leaders' voice -- you also want the leaders to bring with them their 
followers, and their subordinate leaders.  That makes perfect sense, 
and seems perfectly proper.  If Clinton had asked the national leaders 
of any other hierarchical group -- say, an environmental group whose local 
branches were closely integrated with the center -- to push for some 
measure, and to get their local branch leaders to do the same, I doubt that 
we would call it "interfer[ing] with the inner workings of a [political 
group]."  We'd just call it asking the national leaders to bring their 
entire organization to bear on an important political, moral, or social 
debate.  Likewise, it seems to me, here.
 
    Eugene

  -Original Message-From: [EMAIL PROTECTED] 
  [mailto:[EMAIL PROTECTED]] 
  On Behalf Of marc sternSent: Tuesday, June 15, 2004 
  10:24 AMTo: 'Law & Religion issues for Law 
  Academics'Subject: RE: The President and the 
  Pope
  
  I agree with 
  Eugene’s 
  implicit suggestion that there is a fair amount of hypocrisy at work here. 
  Nevertheless, is it not possible to distinguish what Bush did, which was 
  to interfere with the inner workings of a church(by suggesting that the 
  Vatican ought to get its bishop’s in line),rather than publicly calling on 
  church leaders to join in some public 
  campaign?
  Marc 
  Stern
  
  
  
  
  
  From: [EMAIL PROTECTED] 
  [mailto:[EMAIL PROTECTED]] 
      On Behalf Of Volokh, 
  EugeneSent: Tuesday, 
  June 15, 2004 12:21 PMTo: Law & Religion issues for Law 
  AcademicsSubject: RE: The President and the 
  Pope
  
  
      
  Sorry to sound like a broken record, but I wonder how this would have 
  played out in other contexts.  For instance, the abolitionist 
  movement, the civil rights movement, and various anti-war and other 
  movements have involved political-religi

Re: The President and the Pope

2004-06-15 Thread Mark Tushnet





Not to ride a hobby-horse too hard, but does Eugene think that there's
a relevant difference between public statements (which, if I interpret
his examples correctly, is what he's citing) and a private conversation
with a religious leader (again, in a world of leaks)?

Volokh, Eugene wrote:

  Message
  
  

  
      I wouldn't say hypocrisy -- I'd just say that it's
easy even for well-meaning people to (1) see the conduct of those they
oppose as wrong and even unconstitutional, and think that this is so
for some objective, nonpolitical reason, but (2) then to think better
of the matter when they see similar conduct shorn of their strong
political disagreement with the actor or the actor's proposed
policies.  I know this has often happened to me; that's why considering
situations where the political polarity is reversed is often helpful.
   
      But as to Marc's suggestion, I don't quite see why the
distinction he proposes makes a difference.  Say that the stories read
"Vice President Gore today called on church leaders to join with the
administration in 'healing our land,' and to ask ministers in their
churches to do the same," or "Mr. Clinton called on religious leaders
to put the heat on Congress to approve the funding, and to work through
their ministers and congregations to turn up the heat," or "Clinton
called on the religious leaders . . . to rededicate themselves and
their churches to ethnic diversity and religious freedom, by urging
their ministers to educate their congregations about the importance of
ethnic diversity and religious freedom."  Would that really change the
constitutional analysis?
   
      More broadly, when you seek political allies
among leaders of any organization, you often don't just want the
leaders' voice -- you also want the leaders to bring with them their
followers, and their subordinate leaders.  That makes perfect sense,
and seems perfectly proper.  If Clinton had asked the national leaders
of any other hierarchical group -- say, an environmental group whose
local branches were closely integrated with the center -- to push for
some measure, and to get their local branch leaders to do the same, I
doubt that we would call it "interfer[ing] with the inner workings of a
[political group]."  We'd just call it asking the national leaders to
bring their entire organization to bear on an important political,
moral, or social debate.  Likewise, it seems to me, here.
   
      Eugene
  
-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED]] On Behalf Of marc
stern
    Sent: Tuesday, June 15, 2004 10:24 AM
To: 'Law & Religion issues for Law Academics'
Subject: RE: The President and the Pope



I agree with
Eugene’s
implicit suggestion that there is a fair amount of hypocrisy at work
here. Nevertheless, is it not possible to distinguish what Bush did,
which was to interfere with the inner workings of a church(by
suggesting that the Vatican ought to get its bishop’s in line),rather
than publicly calling on church leaders to join in some public campaign?
Marc Stern
 


 
From:
[EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED]] On Behalf Of Volokh, Eugene
    Sent: Tuesday, June
15, 2004 12:21 PM
To: Law & Religion issues for Law Academics
Subject: RE: The
President and the Pope

 

    Sorry to
sound like a broken record, but I wonder how this would have played out
in other contexts.  For instance, the abolitionist movement, the civil
rights movement, and various anti-war and other movements have involved
political-religious alliances on controversial public policy
questions.  (The abolitionist movement was of course indeed dangerous
to the republic in the short term, though good in the long term.)  I
assume that many good, smart politicians would have seen the potential
to build and strengthen such alliances, and I'd guess that they indeed
did so.


 


    If in
1963, a government official called on Christian ministers to oppose
racism and segretation and support civil rights, and asked them to
assert that good Christians should oppose racism and segregation and
support civil rights, would this really have been unconstitutional?  If
the official sought to strengthen the existing political-religious
alliance between civil rights forces in politics and in churches, by
bringing in some other religious groups, would that have been
impermissible?  


 


    It seems
to me the answer must clearly be no:  Religious groups and leaders are
important sources of moral authority.  To change people's actions and
votes, one needs to appeal to their moral sense.  If one wants the
civil rights movement, the anti-abortion movement, the gay rights
movement, or whatever other movement to succeed, one needs t

RE: The President and the Pope

Title: Message



    Sorry to sound like a broken record, but I 
wonder how this would have played out in other contexts.  For instance, the 
abolitionist movement, the civil rights movement, and various anti-war and other 
movements have involved political-religious alliances on controversial public 
policy questions.  (The abolitionist movement was of course indeed 
dangerous to the republic in the short term, though good in the long 
term.)  I assume that many good, smart politicians would have seen the 
potential to build and strengthen such alliances, and I'd guess that they indeed 
did so.
 
    If in 1963, a government official called on Christian ministers to 
oppose racism and segretation and support civil rights, and asked them to assert 
that good Christians should oppose racism and segregation and support civil 
rights, would this really have been unconstitutional?  If the official 
sought to strengthen the existing political-religious alliance between civil 
rights forces in politics and in churches, by bringing in some other religious 
groups, would that have been impermissible?  
 
    It seems to me the answer must clearly be no:  Religious 
groups and leaders are important sources of moral authority.  To change 
people's actions and votes, one needs to appeal to their moral sense.  If 
one wants the civil rights movement, the anti-abortion movement, the gay rights 
movement, or whatever other movement to succeed, one needs to build alliances 
with people who can speak the moral language of deeply religious people, and who 
can speak with moral authority to those people.
 
    Incidentally, here are a few concrete examples of other 
appeals to religious groups to join a political and moral 
fight:
 

Nat’l Journal, Dec. 2, 1993:
 
Speaking to black church leaders 
involved in a growing movement to address the disproportionate impacts of 
pollution on low-income minority communities, Vice President Gore today called 
on church leaders to join with the administration in "healing our land." 
Following passionate appeals by leaders to Gore to take steps to confront the 
issue, Gore joined in condemning "the injustice of dumping on those who are 
powerless." . . . .
 
 
 
Washington Times, Sept. 30, 
1999:
 
President Clinton offered 
yesterday to forgive all the debt of poor countries that work to end hunger and 
poverty in the next millennium, and challenged Congress to approve $1 billion to 
finance the debt relief. . . .
 
At a prayer breakfast this week, 
Mr. Clinton called on religious leaders to put the heat on Congress to approve 
the funding. . . .
 
 
 
Atlanta Journal and Constitution, 
June 27, 1996:
 
The Clinton administration, under 
fire from the nation's largest black church, pledged more than $ 40 million 
Wednesday to bolster community efforts to prevent church fires concentrated in 
the South. . . .
 
Clinton called on the religious 
leaders to speak out against crimes of intolerance and to rededicate themselves 
to ethnic diversity and religious freedom. . . .
 
    
Eugene
 

  
   Richard Schragger 
  writes: It seems quite dangerous to a republic 
  for its leaders to encourage and promote the formation of political-religious 
  alliances on controversial public policy questions.  To assert, even 
  obliquely, that to be a good Catholic, one should vote Republican (for 
  example), seems to invite the kind of religiously-identified factionalism that 
  can lead to sectarian strife.  If one takes seriously the Court’s 
  identification of government neutrality (or non-endorsement) as an essential 
  attribute of non-Establishment, then a Presidential appeal to any one 
  religious group or his efforts to create a political alliance with any one 
  religious group seems problematic.  It seems to me that the President has 
  a constitutional obligation not to make statements or engage in conduct that 
  encourages such alliances. 
   
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RE: The President and the Pope

Title: Message



    I wouldn't say hypocrisy -- I'd just say that 
it's easy even for well-meaning people to (1) see the conduct of those they 
oppose as wrong and even unconstitutional, and think that this is so for some 
objective, nonpolitical reason, but (2) then to think better of the matter when 
they see similar conduct shorn of their strong political disagreement with the 
actor or the actor's proposed policies.  I know this has often happened to 
me; that's why considering situations where the political polarity is reversed 
is often helpful.
 
    But as to Marc's suggestion, I don't quite see why the distinction 
he proposes makes a difference.  Say that the stories read "Vice President 
Gore today called on church leaders to join with the administration in 'healing 
our land,' and to ask ministers in their churches to do the same," or "Mr. 
Clinton called on religious leaders to put the heat on Congress to approve the 
funding, and to work through their ministers and congregations to turn up the 
heat," or "Clinton called on the religious leaders . . . to rededicate 
themselves and their churches to ethnic diversity and religious freedom, by 
urging their ministers to educate their congregations about the importance of 
ethnic diversity and religious freedom."  Would that really change the 
constitutional analysis?
 
    More broadly, when you seek political allies among leaders of 
any organization, you often don't just want the leaders' voice -- you also want 
the leaders to bring with them their followers, and their subordinate 
leaders.  That makes perfect sense, and seems perfectly proper.  If 
Clinton had asked the national leaders of any other hierarchical group -- say, 
an environmental group whose local branches were closely integrated with the 
center -- to push for some measure, and to get their local branch leaders to do 
the same, I doubt that we would call it "interfer[ing] with the inner workings 
of a [political group]."  We'd just call it asking the national leaders to 
bring their entire organization to bear on an important political, moral, or 
social debate.  Likewise, it seems to me, here.
 
    Eugene

  
  -Original Message-From: 
  [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] 
  On Behalf Of marc sternSent: Tuesday, June 15, 2004 10:24 
  AMTo: 'Law & Religion issues for Law 
  Academics'Subject: RE: The President and the 
  Pope
  
  I agree with 
  Eugene’s 
  implicit suggestion that there is a fair amount of hypocrisy at work here. 
  Nevertheless, is it not possible to distinguish what Bush did, which was to 
  interfere with the inner workings of a church(by suggesting that the Vatican 
  ought to get its bishop’s in line),rather than publicly calling on church 
  leaders to join in some public campaign?
  Marc 
  Stern
   
  
  
  
  
  From: 
  [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] 
  On Behalf Of Volokh, 
  EugeneSent: Tuesday, June 
  15, 2004 12:21 PMTo: 
  Law & Religion issues for Law 
  AcademicsSubject: RE: The President and the 
  Pope
   
  
      
  Sorry to sound like a broken record, but I wonder how this would have played 
  out in other contexts.  For instance, the abolitionist movement, the 
  civil rights movement, and various anti-war and other movements have involved 
  political-religious alliances on controversial public policy questions.  
  (The abolitionist movement was of course indeed dangerous to the republic in 
  the short term, though good in the long term.)  I assume that many good, 
  smart politicians would have seen the potential to build and strengthen such 
  alliances, and I'd guess that they indeed did 
  so.
  
   
  
      If in 1963, a 
  government official called on Christian ministers to oppose racism and 
  segretation and support civil rights, and asked them to assert that good 
  Christians should oppose racism and segregation and support civil rights, 
  would this really have been unconstitutional?  If the official sought to 
  strengthen the existing political-religious alliance between civil rights 
  forces in politics and in churches, by bringing in some other religious 
  groups, would that have been impermissible?  
  
  
   
  
      It seems to me the 
  answer must clearly be no:  Religious groups and leaders are important 
  sources of moral authority.  To change people's actions and votes, one 
  needs to appeal to their moral sense.  If one wants the civil rights 
  movement, the anti-abortion movement, the gay rights movement, or whatever 
  other movement to succeed, one needs to build alliances with people who can 
  speak the moral language of deeply religious people, and who can speak with 
  moral authority to those people.
  
   
  
      Incidentally, here 
  are a few concrete examples of other appeals to religious groups to join 
  a political and mora

RE: The President and the Pope

2004-06-15 Thread marc stern

Title: Message








I agree with Eugene’s implicit suggestion that there
is a fair amount of hypocrisy at work here. Nevertheless, is it not possible to
distinguish what Bush did, which was to interfere with the inner workings of a
church(by suggesting that the Vatican ought to get its bishop’s in line),rather
than publicly calling on church leaders to join in some public campaign?

Marc Stern

 









From:
[EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene
Sent: Tuesday, June 15, 2004 12:21
PM
To: Law
 & Religion issues for Law Academics
Subject: RE: The President and the
Pope



 



    Sorry to sound like a
broken record, but I wonder how this would have played out in other
contexts.  For instance, the abolitionist movement, the civil rights
movement, and various anti-war and other movements have involved political-religious
alliances on controversial public policy questions.  (The abolitionist
movement was of course indeed dangerous to the republic in the short term,
though good in the long term.)  I assume that many good, smart politicians
would have seen the potential to build and strengthen such alliances, and I'd
guess that they indeed did so.





 





    If in 1963, a government official called
on Christian ministers to oppose racism and segretation and support civil
rights, and asked them to assert that good Christians should oppose racism and
segregation and support civil rights, would this really have been
unconstitutional?  If the official sought to strengthen the existing
political-religious alliance between civil rights forces in politics and in
churches, by bringing in some other religious groups, would that have been
impermissible?  





 





    It seems to me the answer must clearly be
no:  Religious groups and leaders are important sources of moral
authority.  To change people's actions and votes, one needs to appeal to
their moral sense.  If one wants the civil rights movement, the
anti-abortion movement, the gay rights movement, or whatever other movement to
succeed, one needs to build alliances with people who can speak the moral
language of deeply religious people, and who can speak with moral authority to
those people.





 





    Incidentally, here are a few concrete
examples of other appeals to religious groups to join a political and moral
fight:





 





Nat’l Journal, Dec. 2, 1993:

 

Speaking to black church leaders involved in a growing movement to
address the disproportionate impacts of pollution on low-income minority
communities, Vice President Gore today called on church leaders to join with
the administration in "healing our land." Following passionate
appeals by leaders to Gore to take steps to confront the issue, Gore joined in
condemning "the injustice of dumping on those who are powerless." . .
. .

 

 

 

Washington
Times, Sept. 30, 1999:

 

President Clinton offered yesterday to forgive all the debt of poor
countries that work to end hunger and poverty in the next millennium, and
challenged Congress to approve $1 billion to finance the debt relief. . . .

 

At a prayer breakfast this week, Mr. Clinton called on religious
leaders to put the heat on Congress to approve the funding. . . .

 

 

 

Atlanta
Journal and Constitution, June 27, 1996:

 

The Clinton
administration, under fire from the nation's largest black church, pledged more
than $ 40 million Wednesday to bolster community efforts to prevent church fires
concentrated in the South. . . .

 

Clinton
called on the religious leaders to speak out against crimes of intolerance and
to rededicate themselves to ethnic diversity and religious freedom. . . .

 

    Eugene





 





 Richard
Schragger writes: 

It seems quite dangerous to a republic for its leaders to encourage and
promote the formation of political-religious alliances on controversial public
policy questions.  To assert, even obliquely, that to be a good Catholic,
one should vote Republican (for example), seems to invite the kind of
religiously-identified factionalism that can lead to sectarian strife.  If
one takes seriously the Court’s identification of government neutrality
(or non-endorsement) as an essential attribute of non-Establishment, then a
Presidential appeal to any one religious group or his efforts to create a
political alliance with any one religious group seems problematic.  It
seems to me that the President has a constitutional obligation not to make
statements or engage in conduct that encourages such alliances. 

 








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Re: The President and the Pope

2004-06-15 Thread Rich Schragger


It seems quite dangerous to a
republic for its leaders to encourage and promote the formation of
political-religious alliances on controversial public policy
questions.  To assert, even obliquely, that to be a good Catholic,
one should vote Republican (for example), seems to invite the kind of
religiously-identified factionalism that can lead to sectarian
strife.  If one takes seriously the Courts identification of
government neutrality (or non-endorsement) as an essential attribute of
non-Establishment, then a Presidential appeal to any one religious group
or his efforts to create a political alliance with any one religious
group seems problematic.  It seems to me that the President has a
constitutional obligation not to make statements or engage in conduct
that encourages such alliances. 
Richard Schragger
University of Virginia School of Law
Charlottesville, VA 22903
tel: (434) 924-3641 
fax: (434) 982-2845 
[EMAIL PROTECTED]
At 09:53 AM 6/15/2004 -0400, Mark Graber wrote:
Might this be a relevant
constitutional point, though not a point of
constitutional law.
The president plays many different roles.  Sometimes more partisan
roles
are appropriate.  So there is nothing unpresidential about a post
1896
president urging Americans to elect Republicans to Congress (but 
see
Tulis, THE RHETORICAL PRESIDENT, suggesting a constitutional norm in
the
nineteenth century against such behavior).  Other times, the
president
is clearly the representative of the entire nation.  So
campaign
rhetoric would have been inappropriate at Reagan's funeral.
Strikes me that when the President confers with the Pope,
representative
of the entire nation is the appropriate hat.  Urging the Pope to
fight
terrorism is not problemmatic, because that is a non-partisan issue
in
the United States.  Urging the Pope to speak out more clear against
gay
marriage or capital punishment is more problematic.
Is there anything to this admitted intuition.
MAG
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Re: The President and the Pope

2004-06-15 Thread Mark Graber

Might this be a relevant constitutional point, though not a point of
constitutional law.

The president plays many different roles.  Sometimes more partisan roles
are appropriate.  So there is nothing unpresidential about a post 1896
president urging Americans to elect Republicans to Congress (but see
Tulis, THE RHETORICAL PRESIDENT, suggesting a constitutional norm in the
nineteenth century against such behavior).  Other times, the president
is clearly the representative of the entire nation.  So campaign
rhetoric would have been inappropriate at Reagan's funeral.

Strikes me that when the President confers with the Pope, representative
of the entire nation is the appropriate hat.  Urging the Pope to fight
terrorism is not problemmatic, because that is a non-partisan issue in
the United States.  Urging the Pope to speak out more clear against gay
marriage or capital punishment is more problematic.

Is there anything to this admitted intuition.

MAG
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Re: The President and the Pope

2004-06-14 Thread Francis Beckwith

Title: Re: The President and the Pope

Point taken.

Frank

On 6/15/04 12:02 AM, "Paul Finkelman" <[EMAIL PROTECTED]> wrote:

Frank, I think your point misses the issue. It is not about whether particular Catholics follow one rule or the next -- whether they use birth control in their lives, or support choice, or support the death penalty, or think toruture is a good public policy. My point is not about what the politiciians, liberal or consevative, think or do. it is about what the clergy -- especially the Pope -- might do.

But, I will exist from this discussion now, as it is clearly not longer "legal" or "constitiutional."

Francis Beckwith wrote:
I was trying to make the same point as David, but with a little levity.
(The point was: this stuff cuts both ways, so let's move on).

You guys are wound up a little too tight for me. So much for the stereotype
of "laid back Californians." :-)

Frank

On 6/14/04 10:48 PM, "David Cruz" <[EMAIL PROTECTED]> wrote:

On Mon, 14 Jun 2004, Volokh, Eugene wrote:

Now I don't want to constrain Paul's "imagination," "fascinat[ion]," or
sense of "irony" -- all three of which are fine things to have, and give
ourselves a lot of pleasure. But as best I can tell, Paul's posts are
largely ways to express his contempt for the Bush Administration, and
possibly for Republicans generally, and not terribly persuasive ways at
that. What's more, they seem to me to have precious little by way of
argument about whether a President's appeal to religious leaders are
unconstitutional (whether the question is justiciable or not) or
illegal.
If I'm not mistaken, the same (ir)relevancy conclusion is true of Frank
Beckwith's latest contribution. On Mon, 14 Jun 2004, Francis Beckwith
wrote:

On 6/14/04 8:11 PM, "Paul Finkelman" <[EMAIL PROTECTED]> wrote:

It is fascinating to see Bush pick and choose which Catholic
doctrine he likes; I am sure, however, that His Holiness can see through
all
of this.

You're absolutely right. Picking and choosing Catholic doctrines one likes
is the exclusive prerogative of liberal Catholic office holders. Bush
should have known better.
I actually thought that Marty's question was interesting (and that an
answer to it did not at all necessarily answer the constitutional
propriety of like behavior by Presidential candidates, who after all are
not (necessarily, yet) part of government). I for one would appreciate it
if partisans of all stripes might re-steer this thread to the
constitutional issue (or just let the whole thing go away quietly). If
that's not possible, perhaps some signal -- [EMAIL PROTECTED] maybe -- might be added
to the subject lines of posts that just continue the political sniping?

David B. Cruz
Professor of Law
University of Southern California Law School
Los Angeles, CA 90089-0071
U.S.A.

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Re: The President and the Pope

Frank, I think your point misses the issue. It is not about whether particular
Catholics follow one rule or the next -- whether they use birth control in
their lives, or support choice, or support the death penalty, or think toruture
is a good public policy. My point is not about what the politiciians, liberal
or consevative, think or do. it is about what the clergy -- especially the
Pope -- might do.

But, I will exist from this discussion now, as it is clearly not longer "legal"
or "constitiutional."

Francis Beckwith wrote:

I was trying to make the same point as David, but with a little levity.
(The point was: this stuff cuts both ways, so let's move on).

You guys are wound up a little too tight for me. So much for the stereotype
of "laid back Californians." :-)

Frank

On 6/14/04 10:48 PM, "David Cruz" <[EMAIL PROTECTED]> wrote:

On Mon, 14 Jun 2004, Volokh, Eugene wrote:

If I'm not mistaken, the same (ir)relevancy conclusion is true of Frank
Beckwith's latest contribution. On Mon, 14 Jun 2004, Francis Beckwith
wrote:

On 6/14/04 8:11 PM, "Paul Finkelman" <[EMAIL PROTECTED]> wrote:

It is fascinating to see Bush pick and choose which Catholic
doctrine he likes; I am sure, however, that His Holiness can see through
all
of this.

You're absolutely right. Picking and choosing Catholic doctrines one likes
is the exclusive prerogative of liberal Catholic office holders. Bush
should have known better.

I actually thought that Marty's question was interesting (and that an
answer to it did not at all necessarily answer the constitutional
propriety of like behavior by Presidential candidates, who after all are
not (necessarily, yet) part of government). I for one would appreciate it
if partisans of all stripes might re-steer this thread to the
constitutional issue (or just let the whole thing go away quietly). If
that's not possible, perhaps some signal -- [EMAIL PROTECTED] maybe -- might be added
to the subject lines of posts that just continue the political sniping?

David B. Cruz
Professor of Law
University of Southern California Law School
Los Angeles, CA 90089-0071
U.S.A.

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--
Paul Finkelman
Chapman Distinguished Professor of Law
University of Tulsa College of Law
3120 East 4th Place
Tulsa, OK 74104-3189

918-631-3706 (office)
918-631-2194 (fax)

[EMAIL PROTECTED]

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Re: The President and the Pope

aching out to black leaders, given that after all Democrats are the party of slavery -- which is to say no irony at all. Some Republicans' misdeeds in the 1850s, 1920s, or 1960 aren't terribly relevant to what other Republicans believe today.

Now I don't want to constrain Paul's "imagination," "fascinat[ion]," or sense of "irony" -- all three of which are fine things to have, and give ourselves a lot of pleasure. But as best I can tell, Paul's posts aree largely ways to express his contempt for the Bush Administration, and possibly for Republicans generally, and not terribly persuasive ways at that. What's more, they seem to me to have precious little by way of argument about whether a President's appeal to religious leaders are unconstitutional (whether the question is justiciable or not) or illegal.

Eugene

Paul Finkelman writes:

There is some irony in this, since the Republican Party has never nominated a Catholic for the presidency and in two campaigns many Republicans attacked the Catholicism of the candidate (Al Smith and John F. Kennedy) as being a tool of the Pope. I remember Republicans arguing that if elected Kennedy would have a "hot line" to the Vatican. I rememebr many people shaking their head in wonder, asking how anyone could support a "Catholic" for the Presidency. Protestant, Catholic, it was all the same to this Jewish kid! But, the Republicans have a long history of religous bigotry and opposition to foreigners, going back to the immigration quotas of the 1920s and indeed to some of the Party's anti-Catholic roots in the 1850s. Now we have the ironic reversal, the Republicans *want* a hot line to the Pope so he can campaign for them.

Paul Finkelman

Volokh, Eugene wrote:

It's always hard to argue with people's imaginations, but I would assume that at least many of Bush's supporters would simply say that the Catholic bishops have it wrong on the merits -- they're entitled to express their religious views, but voters should disagree with those views.

As to "picking and choosing which Catholic doctrine he likes," that's hardly a matter of just Bush's doing it. Most American Catholics do it, in deciding how to act, both personally and politically. Many American Catholic politicians likewise do the same.

Nor is there anything wrong with Bush's doing it: Whenever someone asks someone of a different religious group or political group to make common cause on issue A, they aren't necessarily insisting on the same as to issue B. If the ACLU asks the NRA to join them on an anti-BCRA brief, there's nothing terribly fascinating in seeing the ACLU pick and choose which NRA beliefs they like: It's enough that they agree on the First Amendment issue, even if they don't agree on the Second Amendment.

To tie this to the law of government and religion: The question, as I understand it, is whether there's any constitutional problem (whether or not justiciable) with the President seeking political help from religious groups in pushing some aspects of his agenda, whether it's a pro-civil-rights agenda, anti-abortion-rights agenda, pro-environmentalist agenda, anti-poverty agenda, or whatever else. I think the answer is definitely "no," even when people who dislike the President might imagine that the President's side would make Establishment Clause objections had the tables been turned (an objection that would be just as unsound as the objection to the President's current actions), and even when the President is stressing one aspect of the religious group's views and not another aspect.

Eugene

-Original Message-
From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]] On Behalf Of Paul Finkelman
Sent: Monday, June 14, 2004 6:11 PM
To: Law & Religion issues for Law Academics
Subject: Re: The President and the Pope

I wonder how Bush would respond if the Bishops all said that no Catholic voter should support a man who 1) vigorously endorses the death penalty, whcih the church opposes, and as a chief executive did not do everything in his power to oppose the death penalty and who did not use all his powers to pardon anyone who might be executed. I imagine we would hear howls from the Bush people about separation of Chuch and state. Similarly, what would happen if the Bishops attacked those executives who do not do enough to end world poverty and hunger. It is fascinating to see Bush pick and choose which Catholic doctrine he likes; I am sure, however, that His Holiness can see through all of this.

Paul Finkelman

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Re: The President and the Pope

2004-06-14 Thread Francis Beckwith

 I was trying to make the same point as David, but with a little levity.
(The point was: this stuff cuts both ways, so let's move on).

You guys are wound up a little too tight for me.  So much for the stereotype
of "laid back Californians."  :-)

Frank

On 6/14/04 10:48 PM, "David Cruz" <[EMAIL PROTECTED]> wrote:

> 
> On Mon, 14 Jun 2004, Volokh, Eugene wrote:
> 
>>  Now I don't want to constrain Paul's "imagination," "fascinat[ion]," or
>> sense of "irony" -- all three of which are fine things to have, and give
>> ourselves a lot of pleasure.  But as best I can tell, Paul's posts are
>> largely ways to express his contempt for the Bush Administration, and
>> possibly for Republicans generally, and not terribly persuasive ways at
>> that.  What's more, they seem to me to have precious little by way of
>> argument about whether a President's appeal to religious leaders are
>> unconstitutional (whether the question is justiciable or not) or
>> illegal.
> 
> If I'm not mistaken, the same (ir)relevancy conclusion is true of Frank
> Beckwith's latest contribution.  On Mon, 14 Jun 2004, Francis Beckwith
> wrote:
> 
>> On 6/14/04 8:11 PM, "Paul Finkelman" <[EMAIL PROTECTED]> wrote:
>> 
>> 
>> 
>>> It is fascinating to see Bush pick and choose which Catholic
>>> doctrine he likes;  I am sure, however, that His Holiness can see through
>>> all
>>> of this.
>> 
>> You're absolutely right. Picking and choosing Catholic doctrines one likes
>> is the exclusive prerogative of liberal Catholic office holders.  Bush
>> should have known better.
> 
> I actually thought that Marty's question was interesting (and that an
> answer to it did not at all necessarily answer the constitutional
> propriety of like behavior by Presidential candidates, who after all are
> not (necessarily, yet) part of government).  I for one would appreciate it
> if partisans of all stripes might re-steer this thread to the
> constitutional issue (or just let the whole thing go away quietly).  If
> that's not possible, perhaps some signal -- [EMAIL PROTECTED] maybe -- might be added
> to the subject lines of posts that just continue the political sniping?
> 
> 
> David B. Cruz
> Professor of Law
> University of Southern California Law School
> Los Angeles, CA 90089-0071
> U.S.A.
> 
> 
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Re: The President and the Pope

2004-06-14 Thread David Cruz

On Mon, 14 Jun 2004, Volokh, Eugene wrote:

>  Now I don't want to constrain Paul's "imagination," "fascinat[ion]," or
> sense of "irony" -- all three of which are fine things to have, and give
> ourselves a lot of pleasure.  But as best I can tell, Paul's posts are
> largely ways to express his contempt for the Bush Administration, and
> possibly for Republicans generally, and not terribly persuasive ways at
> that.  What's more, they seem to me to have precious little by way of
> argument about whether a President's appeal to religious leaders are
> unconstitutional (whether the question is justiciable or not) or
> illegal.

If I'm not mistaken, the same (ir)relevancy conclusion is true of Frank
Beckwith's latest contribution.  On Mon, 14 Jun 2004, Francis Beckwith
wrote:

> On 6/14/04 8:11 PM, "Paul Finkelman" <[EMAIL PROTECTED]> wrote:
>
> 
>
> >It is fascinating to see Bush pick and choose which Catholic
> > doctrine he likes;  I am sure, however, that His Holiness can see through all
> > of this.
>
> You're absolutely right. Picking and choosing Catholic doctrines one likes
> is the exclusive prerogative of liberal Catholic office holders.  Bush
> should have known better.

I actually thought that Marty's question was interesting (and that an
answer to it did not at all necessarily answer the constitutional
propriety of like behavior by Presidential candidates, who after all are
not (necessarily, yet) part of government).  I for one would appreciate it
if partisans of all stripes might re-steer this thread to the
constitutional issue (or just let the whole thing go away quietly).  If
that's not possible, perhaps some signal -- [EMAIL PROTECTED] maybe -- might be added
to the subject lines of posts that just continue the political sniping?

David B. Cruz
Professor of Law
University of Southern California Law School
Los Angeles, CA 90089-0071
U.S.A.

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Re: The President and the Pope

2004-06-14 Thread Volokh, Eugene

Establishment Clause 
objections had the tables been turned (an objection that would be just as unsound as 
the objection to the President's current actions), and even when the President is 
stressing one aspect of the religious group's views and not another aspect.
         
        Eugene
 
-Original Message-
From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Paul Finkelman
Sent: Monday, June 14, 2004 6:11 PM
To: Law & Religion issues for Law Academics
Subject: Re: The President and the Pope



I wonder how Bush would respond if the Bishops all said that no 
Catholic voter should support a man who 1) vigorously endorses the death penalty, 
whcih the church opposes, and as a chief executive did not do everything in his power 
to oppose the death penalty and who did not use all his powers to pardon anyone who 
might be executed.  I imagine we would hear howls from the Bush people about 
separation of Chuch and state.  Similarly, what would happen if the Bishops attacked 
those executives who do not do enough to end world poverty and hunger.  It is 
fascinating to see Bush pick and choose which Catholic doctrine he likes;  I am sure, 
however, that His Holiness can see through all of this.

Paul Finkelman


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Re: The President and the Pope

2004-06-14 Thread Francis Beckwith

On 6/14/04 8:11 PM, "Paul Finkelman" <[EMAIL PROTECTED]> wrote:

>It is fascinating to see Bush pick and choose which Catholic
> doctrine he likes;  I am sure, however, that His Holiness can see through all
> of this.

You're absolutely right. Picking and choosing Catholic doctrines one likes
is the exclusive prerogative of liberal Catholic office holders.  Bush
should have known better.

Frank

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Re: The President and the Pope





There is some irony in this, since the Republican Party has never nominated
a Catholic for the presidency and in two campaigns many Republicans attacked
the Catholicism of the candidate (Al Smith and John F. Kennedy) as being
a tool of the Pope.  I remember  Republicans arguing that if elected Kennedy
would have a "hot line" to the Vatican.  I rememebr many people shaking their
head in wonder, asking how anyone could support a "Catholic" for the Presidency.
Protestant, Catholic, it was all the same to this Jewish kid!  But, the Republicans
have a long history of religous bigotry and opposition to foreigners, going
back to the immigration quotas of the 1920s and indeed to some of the Party's
anti-Catholic roots in the 1850s.   Now we have the ironic reversal, the
Republicans *want* a hot line to the Pope so he can campaign for them.  

Paul Finkelman

Volokh, Eugene wrote:

  Message
  
  
 
  
 
      It's always hard to argue with people's  imaginations,
but I would assume that at least many of Bush's supporters would  simply
say that the Catholic bishops have it wrong on the merits -- they're  entitled
to express their religious views, but voters should disagree with those  views.
 
   
 
      As to "picking and choosing which Catholic doctrine he likes,"
 that's hardly a matter of just Bush's doing it.  Most American Catholics
do  it, in deciding how to act, both personally and politically.  Many American
 Catholic politicians likewise do the same.
 
   
 
      Nor is there anything wrong with Bush's doing  it: 
Whenever someone asks someone of a different religious group or  political
group to make common cause on issue A, they aren't necessarily  insisting
on the same as to issue B.  If the ACLU asks the NRA to join them  on an
anti-BCRA brief, there's nothing terribly fascinating in seeing the ACLU
 pick and choose which NRA beliefs they like:  It's enough that they agree
 on the First Amendment issue, even if they don't agree on the Second  Amendment.
 
   
 
      To tie this to the law of government and religion:  The
 question, as I understand it, is whether there's any constitutional problem
 (whether or not justiciable) with the President seeking political help from
 religious groups in pushing some aspects of his agenda, whether it's a  pro-civil-rights
agenda, anti-abortion-rights agenda, pro-environmentalist  agenda, anti-poverty
agenda, or whatever else.  I think the answer is  definitely "no," even when
people who dislike the President might imagine that  the President's side
would make Establishment Clause objections had the tables  been turned (an
objection that would be just as unsound as the objection to the  President's
current actions), and even when the President is stressing one  aspect of
the religious group's views and not another  aspect.
 
   
 
      Eugene
 
   
  
  -Original Message-
  From:  [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]]
 On Behalf Of Paul Finkelman
  Sent: Monday, June 14, 2004 6:11  PM
  To: Law & Religion issues for Law Academics
  Subject:  Re: The President and the Pope
  
  
 
  I
   wonder how Bush would respond if the Bishops all said that no Catholic
votershould support a man who 1) vigorously endorses the death penalty,
whcih thechurch opposes, and as a chief executive did not do everything
in his power tooppose the death penalty and who did not use all his powers
to pardon anyonewho might be executed.  I imagine we would hear howls
from the Bushpeople about separation of Chuch and state.  Similarly,
what would happenif the Bishops attacked those executives who do not
do enough to end worldpoverty and hunger.  It is fascinating to see Bush
pick and choose whichCatholic doctrine he likes;  I am sure, however,
that His Holiness cansee through all of this.

Paul Finkelman

Mark Tushnet wrote:
   

  My intuition is that openness matters, in constraining what 
a politician will say.  But I agree that we're dealing with 
quite a marginal issue here.

----- Original Message -
From: Richard Dougherty <[EMAIL PROTECTED]>
Date: Monday, June 14, 2004 5:51 pm
Subject: Re: The President and the Pope

  
 
  
Mark:
I would have thought that it was the other way around on 

  
  the 
  
 
  
"problematic" score, no?  If Bush is looking for electoral 

  
  support, 
  
 
  
wouldn't it be more advantageous to make a public 

  
  statement about 
  
 
  
the matter, rather than making what looks like a rather 

  
  innocuous 
  
 
  
comment to a Vatican official in private?  (About which, 

  
  of course, 
  
 
  
he was perfectly accurate.)  Or is your suggestion that if

Re: The President and the Pope

2004-06-14 Thread Richard Dougherty

Interesting questions, which would be even more so if Bush were Catholic; I take it 
that in this situation he's wondering to what extent the bishops will promote the 
teachings of their own Church.

As a (somewhat) controversial aside, the issues Paul mentions here, though important, 
do not rise to the level of abortion in Catholic teaching -- and I would include here 
capital punishment, which the Catechism presents as a prudential matter.  (We can 
pursue this off-list if anyone is interested).

Richard Dougherty

>I wonder how Bush would respond if the Bishops all said that no Catholic 
>voter should support a man who 1) vigorously endorses the death penalty, 
>whcih the church opposes, and as a chief executive did not do everything 
>in his power to oppose the death penalty and who did not use all his 
>powers to pardon anyone who might be executed.  I imagine we would hear 
>howls from the Bush people about separation of Chuch and state. 
> Similarly, what would happen if the Bishops attacked those executives 
>who do not do enough to end world poverty and hunger.  It is fascinating 
>to see Bush pick and choose which Catholic doctrine he likes;  I am 
>sure, however, that His Holiness can see through all of this.
>
>Paul Finkelman
>
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RE: The President and the Pope

2004-06-14 Thread Volokh, Eugene

Title: Message



    It's always hard to argue with people's 
imaginations, but I would assume that at least many of Bush's supporters would 
simply say that the Catholic bishops have it wrong on the merits -- they're 
entitled to express their religious views, but voters should disagree with those 
views.
 
    As to "picking and choosing which Catholic doctrine he likes," 
that's hardly a matter of just Bush's doing it.  Most American Catholics do 
it, in deciding how to act, both personally and politically.  Many American 
Catholic politicians likewise do the same.
 
    Nor is there anything wrong with Bush's doing 
it:  Whenever someone asks someone of a different religious group or 
political group to make common cause on issue A, they aren't necessarily 
insisting on the same as to issue B.  If the ACLU asks the NRA to join them 
on an anti-BCRA brief, there's nothing terribly fascinating in seeing the ACLU 
pick and choose which NRA beliefs they like:  It's enough that they agree 
on the First Amendment issue, even if they don't agree on the Second 
Amendment.
 
    To tie this to the law of government and religion:  The 
question, as I understand it, is whether there's any constitutional problem 
(whether or not justiciable) with the President seeking political help from 
religious groups in pushing some aspects of his agenda, whether it's a 
pro-civil-rights agenda, anti-abortion-rights agenda, pro-environmentalist 
agenda, anti-poverty agenda, or whatever else.  I think the answer is 
definitely "no," even when people who dislike the President might imagine that 
the President's side would make Establishment Clause objections had the tables 
been turned (an objection that would be just as unsound as the objection to the 
President's current actions), and even when the President is stressing one 
aspect of the religious group's views and not another 
aspect.
 
    Eugene
 

-Original Message-From: 
[EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] 
On Behalf Of Paul FinkelmanSent: Monday, June 14, 2004 6:11 
PMTo: Law & Religion issues for Law AcademicsSubject: 
Re: The President and the Pope
I 
  wonder how Bush would respond if the Bishops all said that no Catholic voter 
  should support a man who 1) vigorously endorses the death penalty, whcih the 
  church opposes, and as a chief executive did not do everything in his power to 
  oppose the death penalty and who did not use all his powers to pardon anyone 
  who might be executed.  I imagine we would hear howls from the Bush 
  people about separation of Chuch and state.  Similarly, what would happen 
  if the Bishops attacked those executives who do not do enough to end world 
  poverty and hunger.  It is fascinating to see Bush pick and choose which 
  Catholic doctrine he likes;  I am sure, however, that His Holiness can 
  see through all of this.Paul FinkelmanMark Tushnet wrote:
  My intuition is that openness matters, in constraining what 
a politician will say.  But I agree that we're dealing with 
quite a marginal issue here.

- Original Message -----
From: Richard Dougherty <[EMAIL PROTECTED]>
Date: Monday, June 14, 2004 5:51 pm
Subject: Re: The President and the Pope

  
Mark:
I would have thought that it was the other way around on 
the 
  
"problematic" score, no?  If Bush is looking for electoral 
support, 
  
wouldn't it be more advantageous to make a public 
statement about 
  
the matter, rather than making what looks like a rather 
innocuous 
  
comment to a Vatican official in private?  (About which, 
of course, 
  
he was perfectly accurate.)  Or is your suggestion that if 
he does 
  
so openly then at least we know what he's up to?  I 
suppose were 
  
Bush to make public a criticism of the Catholic bishops 
he might 
  
risk alienating Catholic voters?  (But we should all be 
aware that 
  
an attempt to influence Catholic voters in America by 
appealing to 
  
a Vatican official in private is essentially futile.)

This might be a mountain being made into a molehill.

Richard Dougherty


-- Original Message --
From: Mark Tushnet <[EMAIL PROTECTED]>
Reply-To: Law & Religion issues for Law Academics 
<[EMAIL PROTECTED]>Date:  Mon, 14 Jun 
2004 15:43:05 -0400
  

  I have the feeling that this thread may have played itself 
  out, 
  
but one 

  matter hasn't come up -- whether there's a difference 
  between a 
  
public 

  statement soliciting support from religious leaders, etc., 
  and a 
  
private 

  conversation in which such support is solicited (and 
  whether, in a 
  
world 

  of leaks, such a distinction is anything close to 
  co

Re: The President and the Pope





I wonder how Bush would respond if the Bishops all said that no Catholic
voter should support a man who 1) vigorously endorses the death penalty,
whcih the church opposes, and as a chief executive did not do everything
in his power to oppose the death penalty and who did not use all his powers
to pardon anyone who might be executed.  I imagine we would hear howls from
the Bush people about separation of Chuch and state.  Similarly, what would
happen if the Bishops attacked those executives who do not do enough to end
world poverty and hunger.  It is fascinating to see Bush pick and choose
which Catholic doctrine he likes;  I am sure, however, that His Holiness
can see through all of this.

Paul Finkelman

Mark Tushnet wrote:

  My intuition is that openness matters, in constraining what 
a politician will say.  But I agree that we're dealing with 
quite a marginal issue here.

- Original Message -
From: Richard Dougherty <[EMAIL PROTECTED]>
Date: Monday, June 14, 2004 5:51 pm
Subject: Re: The President and the Pope

  
  
Mark:
I would have thought that it was the other way around on 

  
  the 
  
  
"problematic" score, no?  If Bush is looking for electoral 

  
  support, 
  
  
wouldn't it be more advantageous to make a public 

  
  statement about 
  
  
the matter, rather than making what looks like a rather 

  
  innocuous 
  
  
comment to a Vatican official in private?  (About which, 

  
  of course, 
  
  
he was perfectly accurate.)  Or is your suggestion that if 

  
  he does 
  
  
so openly then at least we know what he's up to?  I 

  
  suppose were 
  
  
Bush to make public a criticism of the Catholic bishops 

  
  he might 
  
  
risk alienating Catholic voters?  (But we should all be 

  
  aware that 
  
  
an attempt to influence Catholic voters in America by 

  
  appealing to 
  
  
a Vatican official in private is essentially futile.)

This might be a mountain being made into a molehill.

Richard Dougherty


-- Original Message --
From: Mark Tushnet <[EMAIL PROTECTED]>
Reply-To: Law & Religion issues for Law Academics 
<[EMAIL PROTECTED]>Date:  Mon, 14 Jun 

  
  2004 15:43:05 -0400
  
  

  I have the feeling that this thread may have played itself 
  

  
  out, 
  
  
but one 


  matter hasn't come up -- whether there's a difference 
  

  
  between a 
  
  
public 


  statement soliciting support from religious leaders, etc., 
  

  
  and a 
  
  
private 


  conversation in which such support is solicited (and 
  

  
  whether, in a 
  
  
world 


  of leaks, such a distinction is anything close to 
  

  
  coherent).  I 
  
  
simply 


  report my intuition that the public statements are lower 
  

  
  on the 
  
  

  "problematic" scale than the private conversation 
  

  
  (which is not to 
  
  
say 


  that either one is high on that scale).

  

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  _
  
  

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Chapman Distinguished Professor of Law
University of Tulsa College of Law
3120 East 4th Place
Tulsa, OK   74104-3189

918-631-3706 (office)
918-631-2194 (fax)

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Re: The President and the Pope

2004-06-14 Thread Mark Tushnet

My intuition is that openness matters, in constraining what 
a politician will say.  But I agree that we're dealing with 
quite a marginal issue here.

- Original Message -
From: Richard Dougherty <[EMAIL PROTECTED]>
Date: Monday, June 14, 2004 5:51 pm
Subject: Re: The President and the Pope

> Mark:
> I would have thought that it was the other way around on 
the 
> "problematic" score, no?  If Bush is looking for electoral 
support, 
> wouldn't it be more advantageous to make a public 
statement about 
> the matter, rather than making what looks like a rather 
innocuous 
> comment to a Vatican official in private?  (About which, 
of course, 
> he was perfectly accurate.)  Or is your suggestion that if 
he does 
> so openly then at least we know what he's up to?  I 
suppose were 
> Bush to make public a criticism of the Catholic bishops 
he might 
> risk alienating Catholic voters?  (But we should all be 
aware that 
> an attempt to influence Catholic voters in America by 
appealing to 
> a Vatican official in private is essentially futile.)
> 
> This might be a mountain being made into a molehill.
> 
> Richard Dougherty
> 
> 
> -- Original Message --
> From: Mark Tushnet <[EMAIL PROTECTED]>
> Reply-To: Law & Religion issues for Law Academics 
> <[EMAIL PROTECTED]>Date:  Mon, 14 Jun 
2004 15:43:05 -0400
> 
> >I have the feeling that this thread may have played itself 
out, 
> but one 
> >matter hasn't come up -- whether there's a difference 
between a 
> public 
> >statement soliciting support from religious leaders, etc., 
and a 
> private 
> >conversation in which such support is solicited (and 
whether, in a 
> world 
> >of leaks, such a distinction is anything close to 
coherent).  I 
> simply 
> >report my intuition that the public statements are lower 
on the 
> >"problematic" scale than the private conversation 
(which is not to 
> say 
> >that either one is high on that scale).
> >
> 
>__
_
> >To post, send message to [EMAIL PROTECTED]
> >To subscribe, unsubscribe, change options, or get 
password, see 
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
> >
> 
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fn:Mark Tushnet,tushnet
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tel;work:202-662-1906
org:Georgetown University Law Center;
adr:;;600 New Jersey Ave. NW;Washington;DC;20001;
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Re: The President and the Pope

2004-06-14 Thread Richard Dougherty

Mark:
I would have thought that it was the other way around on the "problematic" score, no?  
If Bush is looking for electoral support, wouldn't it be more advantageous to make a 
public statement about the matter, rather than making what looks like a rather 
innocuous comment to a Vatican official in private?  (About which, of course, he was 
perfectly accurate.)  Or is your suggestion that if he does so openly then at least we 
know what he's up to?  I suppose were Bush to make public a criticism of the Catholic 
bishops he might risk alienating Catholic voters?  (But we should all be aware that an 
attempt to influence Catholic voters in America by appealing to a Vatican official in 
private is essentially futile.)

This might be a mountain being made into a molehill.

Richard Dougherty


-- Original Message --
From: Mark Tushnet <[EMAIL PROTECTED]>
Reply-To: Law & Religion issues for Law Academics <[EMAIL PROTECTED]>
Date:  Mon, 14 Jun 2004 15:43:05 -0400

>I have the feeling that this thread may have played itself out, but one 
>matter hasn't come up -- whether there's a difference between a public 
>statement soliciting support from religious leaders, etc., and a private 
>conversation in which such support is solicited (and whether, in a world 
>of leaks, such a distinction is anything close to coherent).  I simply 
>report my intuition that the public statements are lower on the 
>"problematic" scale than the private conversation (which is not to say 
>that either one is high on that scale).
>
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Re: The President and the Pope

2004-06-14 Thread Mark Tushnet

I have the feeling that this thread may have played itself out, but one 
matter hasn't come up -- whether there's a difference between a public 
statement soliciting support from religious leaders, etc., and a private 
conversation in which such support is solicited (and whether, in a world 
of leaks, such a distinction is anything close to coherent).  I simply 
report my intuition that the public statements are lower on the 
"problematic" scale than the private conversation (which is not to say 
that either one is high on that scale).

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Re: The President and the Pope

2004-06-14 Thread Will Linden


 I do NOT find it persuasive, however, when someone
proclaims "TheChurch/TheChurches should stay out of politics",
and fails to explain why issues he differs with are "politics"
and those he espouses are "not politics". I can only feel that
the "wall of separation" is differentially permeable. (The last
"answer" I got to my question was, I kid you not, "I'm not
talking about excommunication!", implying that the MORE serious
"sanction" is less "political", or something which
made an equal amount of sense.
At 02:40 PM 6/14/04 -0400, you wrote:
On Monday, June 14, 2004, at
02:04  PM, Will Linden wrote: 
  Or if in 1967, the
excommunication of Leander Perez has been preceded by a presidential
colloquy seeking papal support for civil rights campaigns. (Sorry, but
for years I have been driven up the wall by increasingly incoherent
responses on why That Was Different). 
It is different because substance, not just process, matters.  The
coherence or lack thereof of an analogy or distinction is based not
merely on the formal structural components of what is being compared, but
also on the substance of what is being compared.  Depending on one's
substantive values, an analogy or distinction will be more or less
persuasive.  To you an analogy between the unborn and the fight
against slavery may seem obvious.  But to find it compelling one
must ignore the vast array of substantive differences between the two
settings.  From the other point of view, the distinctions between
the two may seem compelling, but that too requires either ignoring the
important similiarities or choosing to favor the distinctions over the
similarities. 

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Re: The President and the Pope

2004-06-14 Thread Marty Lederman




In the category of being hoist by one's own petard:  A 
friendly reader notes that I, too, misspelled "berserk."   J   
My sincerest apology. 

  - Original Message - 
  From: 
  Marty Lederman 
  To: Law & Religion issues for Law 
  Academics 
  Sent: Monday, June 14, 2004 12:52 
PM
  Subject: Re: The President and the 
  Pope
  
  I don't wish to become entangled in this increasingly ad 
  hominem debate; and I suppose I regret starting the thread, seeing as how 
  the question appears to have been willfully misconstrued and turned to other 
  ends.  But for what it's worth, I think it should be quite obvious from 
  my prior posts and elsewhere that my "antennae" go neither berzerk nor 
  "bezerk" whenever public officials "act[] on [their] religious positions 
  in the political square."  This case (as described in press reports, 
  anyway -- I make no claim about their accuracy) obviously involves something 
  quite beyond a public official acting in accord with his religious beliefs, no 
  matter what one thinks of the propriety or constitutionality of the 
  President's conduct.
   
  
- Original Message - 
From: 
Amar D. 
Sarwal 
To: Law & Religion issues for Law 
Academics 
Sent: Monday, June 14, 2004 12:38 
PM
Subject: Re: The President and the 
Pope

I have understood the distinction from the beginning of 
this thread.  I was just surprised that you "approved of" Kerry 
violating his own Church's norms by receiving communion.  Later in the 
thread, you made clear that you have no horse in that battle, but you 
mangled my position.  I will leave it at that.
 
As for the general point, I repeat that the antennae on 
this thread go bezerk when this president acts on his religious positions in 
the political square.  I fear that many have no idea how much poorer we 
would be if our predecessors had not done the same (of course, recognizing 
that there have been grave mistakes as well).

  - Original Message - 
  From: 
  [EMAIL PROTECTED] 
  To: [EMAIL PROTECTED] 
  
      Sent: Monday, June 14, 2004 12:27 
  PM
  Subject: Re: The President and the 
  Pope
  
  
  
  In a message dated 6/14/2004 11:49:23 AM Eastern Standard Time, [EMAIL PROTECTED] 
  writes:
  did not force you to discuss the denial of communion aspect of 
the story.You did that yourself when you said:"This does not 
mean that I would hesitate to vote against a president whoasked the 
Pope to instruct American bishops to denounce action I 
approveof."The "action that I approve of" in the context of 
this story has to be Kerrytaking communion in violation of Church 
norms.  
  I'm afraid the 
  above fails to observe an elementary distinction between a 
  constitutional issue and a political or policy issue.  I might 
  believe that nothing in the Constitution prohibits a President from asking 
  the Pope to urge his Bishops to act in a certain manner while at the same 
  time believing that for political reasons it is a bad idea.  Thus, I 
  might defend a President's constitutional prerogative to consult with 
  the Pope, but simultaneously embrace the proposition that guys I want to 
  be president not engage in such conduct. Similarly, it might be 
  constitutionally permissible for a President to invade Iraq, but that 
  doesn't mean I shouldn't vote against a President who does so if my 
  conception of what's right should counsel me to do so. The ideas of the 
  right and the good are not exhausted by what is constitutionally 
  permissible.
   
  While I always 
  welcome "aid[s] [to my] understanding," let me reiterate: what 
  is religiously proper concerning who should and who should not take 
  communion is entirely irrelevant to the question of whether the 
  President's conduct in consulting the Pope is constitutionally 
  permissible.  I do not see that the distinction between the religious 
  question and the constitutional question is in any way novel, but it 
  is important to adhere to it nonetheless.   
   
  BobbyRobert Justin LipkinWidener 
  University School of LawDelaware
  
  

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Re: The President and the Pope

2004-06-14 Thread Malla Pollack

I remember John Kennedy assuring the public during his presidential campaign
that he would not take orders from the Pope if he ever had to choose between
the Constitution and Roman Catholic doctrine.  I find a candidate/official's
views on the interrelationship between religious institutions and his
official responsibilities quite important for an informed electorate.  While
I don't think the Constitution requires Kennedy's position, I would enjoy
hearing reasoning behind any opposite view.
Malla Pollack
Visiting, Univ. of Oregon, Law
541-346-1599
[EMAIL PROTECTED]


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Re: The President and the Pope

2004-06-14 Thread Steven Jamar

On Monday, June 14, 2004, at 02:04 PM, Will Linden wrote:

Or if in 1967, the excommunication of Leander Perez has been preceded by a presidential colloquy seeking papal support for civil rights campaigns. (Sorry, but for years I have been driven up the wall by increasingly incoherent responses on why That Was Different).

It is different because substance, not just process, matters. The coherence or lack thereof of an analogy or distinction is based not merely on the formal structural components of what is being compared, but also on the substance of what is being compared. Depending on one's substantive values, an analogy or distinction will be more or less persuasive. To you an analogy between the unborn and the fight against slavery may seem obvious. But to find it compelling one must ignore the vast array of substantive differences between the two settings. From the other point of view, the distinctions between the two may seem compelling, but that too requires either ignoring the important similiarities or choosing to favor the distinctions over the similarities.

I find favoring the death penalty and opposing abortion to be incoherent positions. I understand the arguments made, I just don't find them persuasive. Same with FGM and male circumcision -- I understand the arguments distinguishing one from the other, I just don't find them compelling or even persuasive on a lower standard than compelling. I recognize the distinctions being drawn; I just don't think them to be valid in some cases, or sufficient in others.

So, Will, climb down off the Perez wall, and accept that what each of us find persuasive is not the same thing and what each of us find coherent will vary with underlying beliefs.

One of the incredibly difficult things constantly exposed on this list, because of who participates and because of the nature of the topics on it, is that we do not start from a common set of premises such that we can convince each other of the correctness of our positions with regularity. This is a deeper concern than the more commonplace problem (which we also regularly observe) of disagreeing about the application of the premises, even if we can agree upon what they are or should be.

Steve [avoiding-my-real-work] Jamar

--
Prof. Steven D. Jamar vox: 202-806-8017
Howard University School of Law fax: 202-806-8428
2900 Van Ness Street NW mailto:[EMAIL PROTECTED]
Washington, DC 20008 http://www.law.howard.edu/faculty/pages/jamar

"When I grow up, I too will go to faraway places, and when I grow old, I too will live by the sea."
"That is all very well, little Alice," said her grandfather, "but there is a third thing you must do."
"What is that?"
"You must do something to make the world more beautiful."

from "Ms. Rumphius" by Barbara Cooney

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Re: The President and the Pope

I would be happy with any of the below.  Religion is a fact.  No amount of
handwringing or tsk-tsking will change that.  Speaking to religious
believers qua religious believers is a good thing and I am thankful that few
presidents have chosen to circumscribe their speech as some here would have
them do.

BTW, why is it wrong for Bush to ask the Pope to help him get re-elected?
They share a common goal--the end of the taking of innocent, unborn life.
The Pope intervened to end communism (or so some say).  Why should he not
intervene here?


- Original Message - 
From: Steven Jamar
To: Law & Religion issues for Law Academics
Sent: Monday, June 14, 2004 1:06 PM
Subject: Re: The President and the Pope


Hmm. I wonder if the visceral response of various list members would be the
same if:

1. Bush were requesting a Saudi imam to so speak out
2. Or an Iranian Ayatollah
3. Or the Dalai Lama
4. Or the religious leader of a pro-Israeli-settlements sect
5. Or Pat Robertson
6. Or Rev. Sinkford (head of the Unitarian Universalist Association)
7. Or the Archibishop of Cantebury
8. Or a Hindu brahmin priest
9. Or the head of the Wiccans
10. Or [fill in the blank religious leader]

It seems to me that the response has largely been not to Marty's question,
but rather an illustration of the principle of the gored ox.

FWIW, I don't see anything justiciable about such an action; I don't see
anything unconstitutional about it; I do see it as a bit tacky and I am
uncomfortable with such mingling of church and state; and in my more cynical
moments I see it as a ploy to try to sway anti-abortion Catholics to vote
for Bush by use of the papacy. (Does anyone doubt that Karl Rove would think
this way about this?)

Steve

On Monday, June 14, 2004, at 12:52 PM, Marty Lederman wrote:


I don't wish to become entangled in this increasingly ad hominem debate; and
I suppose I regret starting the thread, seeing as how the question appears
to have been willfully misconstrued and turned to other ends.  But for what
it's worth, I think it should be quite obvious from my prior posts and
elsewhere that my "antennae" go neither berzerk nor "bezerk" whenever public
officials "act[] on [their] religious positions in the political square."
This case (as described in press reports, anyway -- I make no claim about
their accuracy) obviously involves something quite beyond a public official
acting in accord with his religious beliefs, no matter what one thinks of
the propriety or constitutionality of the President's conduct.


-- 
Prof. Steven D. Jamar vox: 202-806-8017
Howard University School of Law fax: 202-806-8567
2900 Van Ness Street NW mailto:[EMAIL PROTECTED]
Washington, DC 20008 http://www.law.howard.edu/faculty/pages/jamar/

"The modern trouble is in a low capacity to believe in precepts which
restrict and restrain private interests and desires."

Walter Lippmann




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Re: The President and the Pope

2004-06-14 Thread Will Linden


  Or if in 1967, the excommunication of Leander Perez
has been preceded by a presidential colloquy seeking papal support for
civil rights campaigns. (Sorry, but for years I have been driven up the
wall by increasingly incoherent responses on why That Was
Different).
At 01:06 PM 6/14/04 -0400, you wrote:
Hmm.  I wonder if the visceral
response of various list members would be the same if: 
1.  Bush were requesting
a Saudi imam to so speak out 
2.  Or an Iranian
Ayatollah 
3.  Or the Dalai Lama

4.  Or the religious
leader of a pro-Israeli-settlements sect 
5.  Or Pat Robertson

6.  Or Rev. Sinkford
(head of the Unitarian Universalist Association) 
7.  Or the Archibishop
of Cantebury 
8.  Or a Hindu brahmin
priest 
9.  Or the head of the
Wiccans 
10. Or [fill in the blank
religious leader] 

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Re: The President and the Pope


I did not "willfully misconstrue[]" anyone's statements.  Ad hominem indeed.
Spelling errors?  Sorry.

As for your statement that this "obviously involves something quite beyond a
public official acting in accord with his religious beliefs", I respectfully
disagree.  I am a Roman Catholic and, if I were president, I would feel
compelled to further the pro-life cause in any way I could legitimately do
so (because of my faith).  It is my understanding that the President is
pro-life in part because of his religious beliefs.

BTW, I was not referring to you alone, but this listserv for many years has
been uncomfortable with this (religious) President.  Googling can unearth
that fact.

- Original Message - 
From: Marty Lederman
To: Law & Religion issues for Law Academics
Sent: Monday, June 14, 2004 12:52 PM
Subject: Re: The President and the Pope


I don't wish to become entangled in this increasingly ad hominem debate; and
I suppose I regret starting the thread, seeing as how the question appears
to have been willfully misconstrued and turned to other ends.  But for what
it's worth, I think it should be quite obvious from my prior posts and
elsewhere that my "antennae" go neither berzerk nor "bezerk" whenever public
officials "act[] on [their] religious positions in the political square."
This case (as described in press reports, anyway -- I make no claim about
their accuracy) obviously involves something quite beyond a public official
acting in accord with his religious beliefs, no matter what one thinks of
the propriety or constitutionality of the President's conduct.

- Original Message - 
From: Amar D. Sarwal
To: Law & Religion issues for Law Academics
Sent: Monday, June 14, 2004 12:38 PM
Subject: Re: The President and the Pope


I have understood the distinction from the beginning of this thread.  I was
just surprised that you "approved of" Kerry violating his own Church's norms
by receiving communion.  Later in the thread, you made clear that you have
no horse in that battle, but you mangled my position.  I will leave it at
that.

As for the general point, I repeat that the antennae on this thread go
bezerk when this president acts on his religious positions in the political
square.  I fear that many have no idea how much poorer we would be if our
predecessors had not done the same (of course, recognizing that there have
been grave mistakes as well).
- Original Message - 
From: [EMAIL PROTECTED]
To: [EMAIL PROTECTED]
Sent: Monday, June 14, 2004 12:27 PM
Subject: Re: The President and the Pope


In a message dated 6/14/2004 11:49:23 AM Eastern Standard Time,
[EMAIL PROTECTED] writes:
did not force you to discuss the denial of communion aspect of the story.
You did that yourself when you said:

"This does not mean that I would hesitate to vote against a president who
asked the Pope to instruct American bishops to denounce action I approve
of."

The "action that I approve of" in the context of this story has to be Kerry
taking communion in violation of Church norms.
I'm afraid the above fails to observe an elementary distinction
between a constitutional issue and a political or policy issue.  I might
believe that nothing in the Constitution prohibits a President from asking
the Pope to urge his Bishops to act in a certain manner while at the same
time believing that for political reasons it is a bad idea.  Thus, I might
defend a President's constitutional prerogative to consult with the Pope,
but simultaneously embrace the proposition that guys I want to be president
not engage in such conduct. Similarly, it might be constitutionally
permissible for a President to invade Iraq, but that doesn't mean I
shouldn't vote against a President who does so if my conception of what's
right should counsel me to do so. The ideas of the right and the good are
not exhausted by what is constitutionally permissible.

While I always welcome "aid[s] [to my] understanding," let me
reiterate: what is religiously proper concerning who should and who should
not take communion is entirely irrelevant to the question of whether the
President's conduct in consulting the Pope is constitutionally permissible.
I do not see that the distinction between the religious question and the
constitutional question is in any way novel, but it is important to adhere
to it nonetheless.

Bobby


Robert Justin Lipkin
Widener University School of Law
Delaware



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Re: The President and the Pope

2004-06-14 Thread Steven Jamar

Hmm.  I wonder if the visceral response of various list members would be the same if:

1.	Bush were requesting a Saudi imam to so speak out
2.	Or an Iranian Ayatollah
3.	Or the Dalai Lama
4.	Or the religious leader of a pro-Israeli-settlements sect
5.	Or Pat Robertson
6.	Or Rev. Sinkford (head of the Unitarian Universalist Association)
7.	Or the Archibishop of Cantebury
8.	Or a Hindu brahmin priest
9.	Or the head of the Wiccans
10.	Or [fill in the blank religious leader]

It seems to me that the response has largely been not to Marty's question, but rather an illustration of the principle of the gored ox.

FWIW, I don't see anything justiciable about such an action; I don't see anything unconstitutional about it; I do see it as a bit tacky and I am uncomfortable with such mingling of church and state; and in my more cynical moments I see it as a ploy to try to sway anti-abortion Catholics to vote for Bush by use of the papacy.  (Does anyone doubt that Karl Rove would think this way about this?)

Steve

On Monday, June 14, 2004, at 12:52  PM, Marty Lederman wrote:

I don't wish to become entangled in this increasingly ad hominem debate; and I suppose I regret starting the thread, seeing as how the question appears to have been willfully misconstrued and turned to other ends.  But for what it's worth, I think it should be quite obvious from my prior posts and elsewhere that my "antennae" go neither berzerk nor "bezerk" whenever public officials "act[] on [their] religious positions in the political square."  This case (as described in press reports, anyway -- I make no claim about their accuracy) obviously involves something quite beyond a public official acting in accord with his religious beliefs, no matter what one thinks of the propriety or constitutionality of the President's conduct.

-- 
Prof. Steven D. Jamar   vox:  202-806-8017
Howard University School of Law fax:  202-806-8567
2900 Van Ness Street NW   mailto:[EMAIL PROTECTED]
Washington, DC  20008   http://www.law.howard.edu/faculty/pages/jamar/

"The modern trouble is in a low capacity to believe in precepts which restrict and restrain private interests and desires."

Walter Lippmann
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Re: The President and the Pope

2004-06-14 Thread Marty Lederman




I don't wish to become entangled in this increasingly ad 
hominem debate; and I suppose I regret starting the thread, seeing as how 
the question appears to have been willfully misconstrued and turned to other 
ends.  But for what it's worth, I think it should be quite obvious from my 
prior posts and elsewhere that my "antennae" go neither berzerk nor "bezerk" 
whenever public officials "act[] on [their] religious positions in the 
political square."  This case (as described in press reports, anyway -- I 
make no claim about their accuracy) obviously involves something quite beyond a 
public official acting in accord with his religious beliefs, no matter what one 
thinks of the propriety or constitutionality of the President's 
conduct.
 

  - Original Message - 
  From: 
  Amar D. 
  Sarwal 
  To: Law & Religion issues for Law 
  Academics 
  Sent: Monday, June 14, 2004 12:38 
PM
  Subject: Re: The President and the 
  Pope
  
  I have understood the distinction from the beginning of this 
  thread.  I was just surprised that you "approved of" Kerry violating his 
  own Church's norms by receiving communion.  Later in the thread, you made 
  clear that you have no horse in that battle, but you mangled my 
  position.  I will leave it at that.
   
  As for the general point, I repeat that the antennae on this 
  thread go bezerk when this president acts on his religious positions in the 
  political square.  I fear that many have no idea how much poorer we would 
  be if our predecessors had not done the same (of course, recognizing that 
  there have been grave mistakes as well).
  
- Original Message - 
From: 
[EMAIL PROTECTED] 
To: [EMAIL PROTECTED] 
    
    Sent: Monday, June 14, 2004 12:27 
PM
Subject: Re: The President and the 
Pope



In a message dated 6/14/2004 11:49:23 AM Eastern Standard Time, [EMAIL PROTECTED] 
writes:
did 
  not force you to discuss the denial of communion aspect of the 
  story.You did that yourself when you said:"This does not mean 
  that I would hesitate to vote against a president whoasked the Pope to 
  instruct American bishops to denounce action I approveof."The 
  "action that I approve of" in the context of this story has to be 
  Kerrytaking communion in violation of Church norms.  

I'm afraid the 
above fails to observe an elementary distinction between a 
constitutional issue and a political or policy issue.  I might believe 
that nothing in the Constitution prohibits a President from asking the Pope 
to urge his Bishops to act in a certain manner while at the same time 
believing that for political reasons it is a bad idea.  Thus, I might 
defend a President's constitutional prerogative to consult with the 
Pope, but simultaneously embrace the proposition that guys I want to be 
president not engage in such conduct. Similarly, it might be 
constitutionally permissible for a President to invade Iraq, but that 
doesn't mean I shouldn't vote against a President who does so if my 
conception of what's right should counsel me to do so. The ideas of the 
right and the good are not exhausted by what is constitutionally 
permissible.
 
While I always welcome 
"aid[s] [to my] understanding," let me reiterate: what is 
religiously proper concerning who should and who should not take communion 
is entirely irrelevant to the question of whether the President's conduct in 
consulting the Pope is constitutionally permissible.  I do not see that 
the distinction between the religious question and the constitutional 
question is in any way novel, but it is important to adhere to it 
nonetheless.   
 
BobbyRobert Justin LipkinWidener University 
School of LawDelaware



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Re: The President and the Pope




I have understood the distinction from the beginning of this 
thread.  I was just surprised that you "approved of" Kerry violating his 
own Church's norms by receiving communion.  Later in the thread, you made 
clear that you have no horse in that battle, but you mangled my position.  
I will leave it at that.
 
As for the general point, I repeat that the antennae on this 
thread go bezerk when this president acts on his religious positions in the 
political square.  I fear that many have no idea how much poorer we would 
be if our predecessors had not done the same (of course, recognizing that there 
have been grave mistakes as well).

  - Original Message - 
  From: 
  [EMAIL PROTECTED] 
  
  To: [EMAIL PROTECTED] 
  Sent: Monday, June 14, 2004 12:27 
PM
  Subject: Re: The President and the 
  Pope
  
  
  
  In a message dated 6/14/2004 11:49:23 AM Eastern Standard Time, [EMAIL PROTECTED] writes:
  did 
not force you to discuss the denial of communion aspect of the story.You 
did that yourself when you said:"This does not mean that I would 
hesitate to vote against a president whoasked the Pope to instruct 
American bishops to denounce action I approveof."The "action 
that I approve of" in the context of this story has to be Kerrytaking 
communion in violation of Church norms.  
  I'm afraid the 
  above fails to observe an elementary distinction between a constitutional 
  issue and a political or policy issue.  I might believe that nothing in 
  the Constitution prohibits a President from asking the Pope to urge his 
  Bishops to act in a certain manner while at the same time believing that for 
  political reasons it is a bad idea.  Thus, I might defend a President's 
  constitutional prerogative to consult with the Pope, but simultaneously 
  embrace the proposition that guys I want to be president not engage in such 
  conduct. Similarly, it might be constitutionally permissible for a 
  President to invade Iraq, but that doesn't mean I shouldn't vote against 
  a President who does so if my conception of what's right should counsel me to 
  do so. The ideas of the right and the good are not exhausted by what is 
  constitutionally permissible.
   
  While I always welcome 
  "aid[s] [to my] understanding," let me reiterate: what is 
  religiously proper concerning who should and who should not take communion is 
  entirely irrelevant to the question of whether the President's conduct in 
  consulting the Pope is constitutionally permissible.  I do not see that 
  the distinction between the religious question and the constitutional 
  question is in any way novel, but it is important to adhere to it 
  nonetheless.   
   
  BobbyRobert Justin LipkinWidener University 
  School of LawDelaware
  
  

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Re: The President and the Pope






In a message dated 6/14/2004 11:49:23 AM Eastern Standard Time, 
[EMAIL PROTECTED] writes:
did not 
  force you to discuss the denial of communion aspect of the story.You did 
  that yourself when you said:"This does not mean that I would hesitate 
  to vote against a president whoasked the Pope to instruct American bishops 
  to denounce action I approveof."The "action that I approve of" in 
  the context of this story has to be Kerrytaking communion in violation of 
  Church norms.  
I'm afraid the above 
fails to observe an elementary distinction between a constitutional issue 
and a political or policy issue.  I might believe that nothing in the 
Constitution prohibits a President from asking the Pope to urge his Bishops to 
act in a certain manner while at the same time believing that for political 
reasons it is a bad idea.  Thus, I might defend a President's 
constitutional prerogative to consult with the Pope, but simultaneously 
embrace the proposition that guys I want to be president not engage in such 
conduct. Similarly, it might be constitutionally permissible for a 
President to invade Iraq, but that doesn't mean I shouldn't vote against a 
President who does so if my conception of what's right should counsel me to do 
so. The ideas of the right and the good are not exhausted by what is 
constitutionally permissible.
 
While I always welcome 
"aid[s] [to my] understanding," let me reiterate: what is religiously 
proper concerning who should and who should not take communion is entirely 
irrelevant to the question of whether the President's conduct in consulting the 
Pope is constitutionally permissible.  I do not see that the distinction 
between the religious question and the constitutional question is in any 
way novel, but it is important to adhere to it nonetheless.   
 
BobbyRobert Justin LipkinWidener University School 
of LawDelaware
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Re: The President and the Pope


I did not force you to discuss the denial of communion aspect of the story.
You did that yourself when you said:

"This does not mean that I would hesitate to vote against a president who
asked the Pope to instruct American bishops to denounce action I approve
of."

The "action that I approve of" in the context of this story has to be Kerry
taking communion in violation of Church norms.  If you mean that phrase to
refer to a pro-choice stand, then I am genuinely surprised at your lack of
understanding about this Pope's repeated condemnations of the pro-choice
position.  If that's the case, I apologize for that misinterpretation.

To aid in your understanding of the context, here is the basic background of
the dilemma:  No person should take communion unless (s)he is in state of
grace.  The Church does not generally police that judgment.  However, when a
person has made public pronouncements against the faith, the Church may have
to intervene to avoid the scandal that others may think that such a position
was consistent with the taking of communion and to ensure that the adherent
understands that his or her soul is in danger.


- Original Message - 
From: [EMAIL PROTECTED]
To: [EMAIL PROTECTED]
Sent: Monday, June 14, 2004 11:18 AM
Subject: Re: The President and the Pope


In a message dated 6/14/2004 10:50:31 AM Eastern Standard Time,
[EMAIL PROTECTED] writes:
But that is the dliemma discussed by the President and the Pope, so it has
everything to do with the peculiar question discussed on this listserv.

My understanding of Marty's question was whether it is
constitutionally appropriate for the President and the Pope to talk about
what American Bishops should do concerning giving John Kerry communion, not
whether Kerry should take or be given communion. Discussing that question
(of constitutional appropriateness) does not (cannot) force me (or anyone
else) to take a position concerning the "Kerry-communion" question.  And
that latter question is precisely what Mr. Sarwal asked me: "Just so I
understand, you approve of Catholic politicians taking communion against the
express wishes of their Church and you would base your vote on it? " Nothing
in my post committed me (or would I want it to commit me) to an answer to
this question. How could I, a non-Catholic, have a good faith answer to that
question?

Further the comment "[t]he Religion Clauses simply do not impose a
filter on the President's communications with religious believers" is an
answer to the question of constitutional appropriateness not an answer to
the Kerry-communion question. And it needs to be argued for not merely
asserted.  However, that said, it is an issue appropriate for the
religionlaw list question.  In my view, an answer to the Kerry-communion
question is not an appropriate
question for this list, nor should we be asked whether we "approve of
Catholic politicians taking communion against the express wishes of their
Church. " As indicated earlier, as a non-Catholic, I can have no good faith
opinion on this matter.

Bobby


Robert Justin Lipkin
Widener University School of Law
Delaware



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RE: The President and the Pope

2004-06-14 Thread Von Keetch




 


From: [EMAIL PROTECTED] 
[mailto:[EMAIL PROTECTED] On Behalf Of 
[EMAIL PROTECTED]Sent: Monday, June 14, 2004 7:03 AMTo: 
[EMAIL PROTECTED]Subject: Re: The President and the 
Pope



In a message dated 6/14/2004 8:45:50 AM Eastern Standard Time, 
[EMAIL PROTECTED] writes:
I'm asking whether such conduct would be appropriate for a 
  President who took his constitutional obligations 
seriously.
Does this 
ask for our intuitions on the appropriateness of such conduct 
or a theory of what "is appropriate for a President who took his 
constitutional obligations seriously"? Or both?
 
How would Marty's examples 
differ from the President asking the Pope to ask religious leaders around the 
world to denounce terrorism? Or suppose the President opposed a war in 
Iraq conducted by Nato without assistance from the United States.  Would it 
be 'appropriate' for the President to ask the Pope to urge Nato leaders or 
bishops in Europe and the United States to speak out against the war?
 
It is difficult (at least 
for me) to find even soft (non-justiciable) reasons against such presidential 
conduct.  This does not mean that I would hesitate to vote against a 
president who asked the Pope to instruct American bishops to denounce 
action I approve of. 
 
BobbyRobert Justin LipkinWidener University 
School of LawDelaware
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RE: The President and the Pope

2004-06-14 Thread Volokh, Eugene

A question:  Say that in the 1960s, the President told a group of white Protestant 
leaders that they needed to tell their congregations to take seriously Christ's 
teachings of human dignity, and to renounce racism and support civil rights.  Or say 
that in 2004 in an alternate universe, President Gore told religious groups that they 
should tell their congregations about the importance of protecting God's 
creationagainst environmental disaster.  Constitutional problem?

Eugene

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Re: The President and the Pope





In a message dated 6/14/2004 10:50:31 AM Eastern Standard Time, 
[EMAIL PROTECTED] writes:
But that 
  is the dliemma discussed by the President and the Pope, so it 
  haseverything to do with the peculiar question discussed on this 
  listserv.

My understanding of Marty's 
question was whether it is constitutionally appropriate for the President and 
the Pope to talk about what American Bishops should do concerning giving John 
Kerry communion, not whether Kerry should take or be given 
communion. Discussing that question (of constitutional appropriateness) 
does not (cannot) force me (or anyone else) to take a position 
concerning the "Kerry-communion" question.  And that latter question is 
precisely what Mr. Sarwal asked me: "Just so I understand, you approve of 
Catholic politicians taking communion against the express wishes of their Church 
and you would base your vote on it? " Nothing in my post committed me (or 
would I want it to commit me) to an answer to this question. How could I, a 
non-Catholic, have a good faith answer to that question?
 
Further the comment "[t]he 
Religion Clauses simply do not impose a filter on the President's communications 
with religious believers" is an answer to the question of constitutional 
appropriateness not an answer to the Kerry-communion question. And it needs to 
be argued for not merely asserted.  However, that said, it is an 
issue appropriate for the religionlaw list question.  In my view, an 
answer to the Kerry-communion question is not an appropriatequestion for 
this list, nor should we be asked whether we "approve of Catholic politicians 
taking communion against the express wishes of their Church. " As indicated 
earlier, as a non-Catholic, I can have no good faith opinion on this 
matter.
 
BobbyRobert Justin LipkinWidener University School 
of LawDelaware
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Re: The President and the Pope






In a message dated 6/14/2004 10:53:37 AM Eastern Standard Time, 
[EMAIL PROTECTED] writes:
In what 
  sense has the President asked the Pope to pressure the Bishops to embrace some 
  moral norm?  
Although Jim does not 
say that I asserted this, just for the record, I never did.  My post was a 
follow up to Marty's post which presented the issue in the first instance.
 
BobbyRobert Justin LipkinWidener University School 
of LawDelaware
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Re: The President and the Pope

2004-06-14 Thread JMHACLJ




I am perplexed.  In what sense has the President asked the Pope to 
pressure the Bishops to embrace some moral norm?  As I understand it, the 
United States Catholic Conference, with one voice, rejects the moral propriety 
of killing unborn children (abortion).  Are there known dissenters from 
this historic (going all the way back to the Didache) respect for human 
life?  
 
Who knows exactly how the conversation went?  
 
Suppose the Pope's deputy simply asked the question, given your familiarity 
with the American people and the American situation, and understanding the 
highly prized role for discretion in actually making such a decision, what 
impact would a directive to the American Bishops of this sort have on the 
struggle to restore the historic (going all the way back to the Fleet Street 
commentaries on the law) legal respect for the rights of the unborn child?
 
Jim Henderson
Senior Counsel
ACLJ
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Re: The President and the Pope


But that is the dliemma discussed by the President and the Pope, so it has
everything to do with the peculiar question discussed on this listserv.

The position advocated by some on this listserv that the President cannot
communicate with (co-)religionists about matters of faith and morals, speak
about his faith in speeches, or invite Christian pastors to his inaugurals
to offer sectarian prayers because of some vague constitutional norm reminds
me of Professor Monaghan's article, Our Perfect Constitution.  Vote for a
secularistic presidential candidate because you are a secularist not because
some so-called constitutional sentiment encourages you to do so.

The Religion Clauses simply do not impose a filter on the President's
communications with religious believers.

- Original Message - 
From: [EMAIL PROTECTED]
To: [EMAIL PROTECTED]
Sent: Monday, June 14, 2004 10:36 AM
Subject: Re: The President and the Pope


In a message dated 6/14/2004 10:23:48 AM Eastern Standard Time,
[EMAIL PROTECTED] writes:
Just so I understand, you approve of Catholic politicians taking communion
against the express wishes of their Church and you would base your vote on
it?

The dilemma for the American bishops is not whether Kerry should be taking
communion.  He should not.  The dilemma is whether the Church should
withhold communion in light of his refusal to abide by Church norms.
The above points seem to be to be entirely irrelevant to the
question addressed in my post, which was to wit:   Whether it is
constitutionally appropriate, in some interesting sense of that term, for
the President of the United States to ask the Pope to urge Bishops to
embrace a particular moral-religious position. Answers to this question have
little, if anything, to do with the substantive religious "dilemma" of
"whether the Church should withhold communion in light of his [Kerry or
anyone] refusal to abide by Church norms."

As a non-Catholic I have no opinion on the substantive religious jud
gment. As a student of American constitutional law, however, I do have a
position on the constitutional appropriateness of a President urging the
Pope to instruct his bishops to act in one way or another.

Bobby


Robert Justin Lipkin
Widener University School of Law
Delaware



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Re: The President and the Pope





In a message dated 6/14/2004 10:23:48 AM Eastern Standard Time, 
[EMAIL PROTECTED] writes:

  Just so I understand, you approve of Catholic politicians 
  taking communion against the express wishes of their Church and you would base 
  your vote on it?  
   
  The dilemma for the American bishops is not whether Kerry 
  should be taking communion.  He should not.  The dilemma is whether 
  the Church should withhold communion in light of his refusal to abide by 
  Church norms.
The above points seem to be 
to be entirely irrelevant to the question addressed in my post, which 
was to wit:   Whether it is constitutionally appropriate, in some 
interesting sense of that term, for the President of the United States to ask 
the Pope to urge Bishops to embrace a particular moral-religious position. 
Answers to this question have little, if anything, to do with the substantive 
religious "dilemma" of "whether the Church should withhold communion in light of 
his [Kerry or anyone] refusal to abide by Church norms."
 
As a non-Catholic I have no 
opinion on the substantive religious judgment. As a student of American 
constitutional law, however, I do have a position on the constitutional 
appropriateness of a President urging the Pope to instruct his bishops to 
act in one way or another.

 
BobbyRobert Justin LipkinWidener University School 
of LawDelaware
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Re: The President and the Pope




"It is difficult (at least for me) to find even soft (non-justiciable) 
reasons against such presidential conduct.  This does not mean that I would 
hesitate to vote against a president who asked the Pope to instruct 
American bishops to denounce action I approve of."
 
Just so I understand, you approve of Catholic politicians 
taking communion against the express wishes of their Church and you would base 
your vote on it?  
 
The dilemma for the American bishops is not whether Kerry 
should be taking communion.  He should not.  The dilemma is whether 
the Church should withhold communion in light of his refusal to abide by Church 
norms.
 
It is interesting that this listserv notices every 
religious/political action of the President, but not his opponents, such as the 
attempt by 47 Democratic/Catholic lawmakers to browbeat the bishops into a 
favorable position or Kerry's meetings with influential bishops around the 
country (presumably to make his case).  
 
Amar D. SarwalD.C. APPEALS1050 Connecticut Avenue, N.W.10th 
FloorWashington, D.C. 20036http://www.dcappeals.comDirect 
Dial:  (202) 517-6705Facsimile:  (202) 318-8017

  - Original Message - 
  From: 
  [EMAIL PROTECTED] 
  
  To: [EMAIL PROTECTED] 
  Sent: Monday, June 14, 2004 9:02 AM
  Subject: Re: The President and the 
  Pope
  
  
  
  In a message dated 6/14/2004 8:45:50 AM Eastern Standard Time, [EMAIL PROTECTED] 
  writes:
  I'm asking whether such conduct would be appropriate for a 
President who took his constitutional obligations 
  seriously.
  Does this 
  ask for our intuitions on the appropriateness of such 
  conduct or a theory of what "is appropriate for a President who took 
  his constitutional obligations seriously"? Or both?
   
  How would Marty's 
  examples differ from the President asking the Pope to ask religious leaders 
  around the world to denounce terrorism? Or suppose the President opposed 
  a war in Iraq conducted by Nato without assistance from the United 
  States.  Would it be 'appropriate' for the President to ask the Pope to 
  urge Nato leaders or bishops in Europe and the United States to speak out 
  against the war?
   
  It is difficult (at least 
  for me) to find even soft (non-justiciable) reasons against such presidential 
  conduct.  This does not mean that I would hesitate to vote against a 
  president who asked the Pope to instruct American bishops to denounce 
  action I approve of. 
   
  BobbyRobert Justin LipkinWidener University 
  School of LawDelaware
  
  

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Re: The President and the Pope