Centessimus Annus ¶ 44, the Four Marks of the Church, and the Four Marks of the U.S. Constitution

Sub Deo Soundings 9/2/24

“Teachers as Witnesses,” by Aaron Urbanczyk, in The Catholic Thing (Dec. 3, 2009):

The university is only coherent insofar as each distinct discipline is understood to be a lens through which the human person can perceive truth and reality. All those disciplines, pursued with the curiosity and passion for truth proper to full persons, lead to ultimate questions about the nature of humanity, creation, and God Himself. It is an unwelcome truth for some scholars, but facts have never interpreted themselves. If the information discovered through a particular discipline “means” something, someone must witness to its significance in the cosmic scheme. And these witnesses who stand before the mystery of existence and speak it we call teachers.

“Is a Secular University a Contradiction in Terms?” by John C. Cavadini, in Church Life Journal (May 9, 2021):

The presence of a theology faculty officially sanctioned as such by the university is … a key element in the identity of a Catholic university. It is the only faculty that Ex Corde singles out as necessary …. The very presence of the faculty already, even ahead of any specific results, both accomplishes and signifies the character of the intellectual life as a “searchfor a synthesis,” as a “dialogue between faith and reason,” especially when theology is part of the required core curriculum for undergraduates. Theology is the way the institution orders its intellectual life to the revelation of divine love, a revelation handed down through scripture and the authoritative tradition of the Church to this day.

“Observations of an Aggie Domer: University Cultures, Evangelization, and the Shape of Faith,”  by Katherine Mascari, in Church Life Journal (August 27, 2024):

The Church’s presence at Texas A&M and Notre Dame entails two noteworthy responses to the Christian call to share the Gospel in every time and place—not least the U.S. college campus. Admittedly, the curated mini-society of a university campus offers a rather limited glimpse into the integral relationship between evangelization and culture as it exists throughout the global Church. Still, these examples serve to illustrate the important reality long articulated by the Church: “Grace supposes culture, and God’s gift becomes flesh in the culture of those who receive it.” (Francis, Evangelii Gaudium, 115.)

“A New Hope for Saving the University,” by Yuval Levin, in Commentary (September 2024):

[Bickel] saw that the people running the university were gradually choosing to cooperate with the people who wanted to burn it down. Rather than stand on the wall and defend the campus, they decided not only to negotiate with their would-be executioners but ultimately to invite them in—and to suggest to them that instead of destroying the university, they could just inherit it over time and, by votes of the faculty, turn it into what they wanted it to be.

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.

“The Crisis in Teaching Constitutional Law”

The New York Times this morning has an opinion piece bearing this title. Despite the writer’s focus on federal constitutional law as developed by the Supreme Court of the United States, the malaise of the mandarins across much of the legal academy is much more pervasive. Caveat lector/auditor/discipulus.

“Benedict XVI, eleven years later”

This set of reflections by Andrea Gagliarducci at Vatican Reporting is insightful. (HT: The Pillar, Starting Seven)