Conference Five, ¶ 1 (Collations on the Hexaemeron)

1. God saw the light, that is was good, and [God] divided the light from the darkness, etc. It was said [in the preceding conference] that intellectual light (intellectualis lux) is truth, shining upon the understanding, whether human or angelic, and which shines forth inextinguishably because [the light] cannot be thought not ‘to Be’.  …

As the great light it shines forth towards the comprehension of substances or essences, of worldly figures, and of natures; as the clear light it shines forth for the comprehension of rational expressions, arguments, and persuasions; as the good light it shines forth upon understanding or enlightens it towards the comprehension of propriety, activity, [and] justice; towards the comprehension of propriety with respect to [good] exercises; towards the comprehension of activity in respect to intellectual speculations; towards the comprehension of justice with respect to political laws. First, propriety must be possessed, secondly activity sought after, [and] third justice exercised.

St. Bonaventure here links the “comprehension of justice with respect to political laws” to intellectual light under the aspect of “the good light” that “enlightens [understanding] towards the comprehension of propriety, activity, and justice.” He orders this activity of comprehension by first (possess propriety), second (seek activity), and third (exercise justice). One might transpose this to a more legal key by reference to legislative, executive, and judicial powers. A closer fit, though, would be within the human person, as St. Bonaventure continues this passage:

Moreover, here is shown what kind [of person] a prelate should be, namely, being perfect in action and contemplation, he [or she] may receive the laws. Where? Upon the mountain of contemplation with Moses, so that one might act with propriety and industry, not beastly, because such are not able to ascend the mountain; for the beast that touches the mountain must be stoned.

This passage locates the human person between angel and beast. The earlier passage described the light “shining upon the understanding, whether human or angelic.” St. Bonaventure does not allude to the angelic role in the transmission of law to Moses explicitly, but that is implicit in his reference to a human person receiving the laws “[u]pon the mountain of contemplation with Moses.”

adjudication-related considerations in Sheetz v. El Dorado

The Supreme Court’s recent decision in Sheetz v. El Dorado County (2024) features a unanimous opinion for the Court by Justice Barrett and separate concurring opinions by three other Justices (Sotomayor joined by Jackson; Gorsuch solo; and Kavanaugh joined by Kagan and Jackson). These separate opinions address themselves in different ways to the narrow scope of what was decided in the opinion for the Court.

The question presented was whether conditions imposed on building permits are exempt from regulatory takings scrutiny because they are imposed pursuant to legislation rather than administratively. The Court answers this question “no.”

Sotomayor (joined by Jackson) wrote separately to note that there is an antecedent question, one not addressed by the Court, which is “whether the permit condition would be a compensable taking if imposed outside the permitting context.”

Gorsuch wrote separately both to note that the Court’s opinion did not address another question and also to suggest that this question had an easy answer. This was the question “whether the Nollan/Dolan test [i.e. the test that governs the Takings Clause inquiry in this context] operates differently when an alleged taking affects a ‘class of properties’ rather than ‘a particular development.’” The easy answer to this question, implied Gorsuch, was “no.”

If this question was so easy, why didn’t the Court address it? It appears that at least three Justices have a different view than Gorsuch. Kavanaugh (joined by Kagan and Jackson) concurred “to underscore that the Court has not previously decided—and today explicitly declines to decide—whether ‘a permit condition imposed on a class of properties must be tailored with the same degree of specificity as a permit condition that targets a particular development.’” The reason to underscore the limited nature of the Court’s decision, presumably, is to prevent others from reading that opinion to have resolved the issue.

From this brief description of the scope of the opinions, the question naturally arises how the Court decided to calibrate the breadth or narrowness of this opinion. The answer to this question is not something that one tries to answer as a matter of constitutional interpretation. The answer turns instead on the nature of the judicial function within the particular place in the judicial hierarchy occupied by the Supreme Court of the United States, together with a justice’s understanding of how best to carry out that function as a single individual on a multimember appellate court with jurisdiction that is both limited and discretionary. To the extent that these kinds of understanding are informed by a distinctive theory, that would be a theory of adjudication rather than a theory of interpretation or law.

Pope Francis’s Remarks to International Federation of Catholic Universities

On January 19, 2024, Pope Francis was scheduled to deliver “a lengthy address” to the International Federation of Catholic Universities. Because he was a “bit short of breath,” he instead got right to the point of what he was going to say and then let his prepared text speak for itself. Here’s what he said viva voce:

I was planning to deliver a lengthy address, but I am a bit short of breath; as you can see, this cold is not going away! I am giving you the text so that you can read it for yourselves. I thank all of you for this meeting and for all the good that our Catholic universities do by communicating knowledge, the word of God and an authentic humanism. Never tire of persevering in the splendid mission of Catholic universities. It is not their confessional status that gives them their identity: that is one aspect, but not the only one. It is perhaps that clear humanism which makes people realize that human beings have values and that these need to be respected. This is perhaps the finest and greatest thing about your universities. Thank you very much.