Patrick McKinley Brennan

The Individual Mandate, Sovereignty, and the Ends of Good Government: A Reply to Professor Randy Barnett

Patrick McKinley Brennan — Tue, 22 Feb 2011 06:55:38 PST

Bologna Revisited (First Things, August 2009)

Patrick McKinley Brennan — Tue, 22 Jun 2010 09:58:01 PDT

Children Play with God: A Contemporary Thomistic Understanding of the Child

Patrick McKinley Brennan — Fri, 18 Jun 2010 11:08:10 PDT

Introduction to Civilizing Authority: Society, State and Church

Patrick McKinley Brennan — Fri, 18 Jun 2010 11:02:36 PDT

Review of Contemporary Perspectives on Natural Law (Ana Marta Gonzalez ed., Ashgate 2009) (Invited)

Patrick McKinley Brennan — Thu, 17 Jun 2010 14:49:19 PDT

Comments on Robert Vischer's Conscience and the Common Good: Reclaiming the Space Between Person and State (Invited)

Patrick McKinley Brennan — Thu, 17 Jun 2010 13:30:33 PDT

Review of Stephen M. Krason, The Public Order and the Sacred Order: Contemporary Issues, Catholic Social Thought, and the Western and American Legal Traditions (Scarecrow Press 2009) (Invited)

Patrick McKinley Brennan — Sun, 13 Jun 2010 23:30:52 PDT

Are Legislation and Rules a Problem in Law? Thoughts on the Work of Joseph Vining

Patrick McKinley Brennan — Fri, 04 Jun 2010 09:02:55 PDT

Written for a conference at Villanova Law School held to celebrate and explore the work of Joseph Vining over forty years, this paper considers the adequacy of Vining’s phenomenology of law. Specifically, it inquires into the accuracy of Vining’s startling claims that “legislation is a problem in law, not central to law” and “rules are nowhere to be found” in law. The argument of the paper is that when -- but only when -- law is understood to be an ordinance of reason in the mind of him or them who have care of the community, for the common good, and promulgated, is legislation not a problem in law. Such an ordinance is not a problem, but in fact a very good thing, exactly because by it the ruling authority leads the people to their common good. The practical problem comes in framing ordinances that in fact live up to this definition, and for this regnative prudence is required. But the formation of such prudence, the paper also argues, is not itself a lawless enterprise. In the natural law tradition, the human project of making law is itself understood to be ruled by higher law. The paper concludes by asking whether Vining’s account of law is ultimately lawless. Vining, like Judge Noonan, understands the making of law to be, at its best, a response to persons. The paper contends that the all-important question, much mooted in modernity and not directly faced by Vining, is whether persons are themselves naturally under law, such that they can proceed to make more law on the basis of it. It is not clear how lawless persons can proceed to make law that is anything but arbitrary, yet it is clear that Vining denies that the arbitrary is law.

Are Catholics Unreliable From a Democratic Point of View? And What Does it Mean if They Are? Thoughts on the Occasion of the Sixtieth Anniversary of Paul Blanshard's American Freedom and Catholic Power

Patrick McKinley Brennan — Fri, 04 Jun 2010 08:51:31 PDT

From 1949 to 1950, Paul Blanshard’s American Freedom and Catholic Power dominated the New York Times best-seller list for eleven months, having captured the attention of American intelligentsia with its claim that “the Catholic problem is still with us” and its call for the formation of a “resistance movement.” Sixty years later, Blanshard’s bigotry is no longer defended in educated circles. Questions remain, though, concerning why Blanshard’s ideas made progress in some of the smartest American minds and throughout much of the culture. Was Blanshard onto something subversive about Catholics? Are Catholics’ commitments not compatible with the demands of American democratic philosophy and practice? Today, some scholars try to solve the Blanshard problem by changing the topic. “Liberal Catholicism,” they intimate, is not the problem posed by the unmodified Catholicism Blanshard targeted more than half a century ago. If, however, we refuse to change the topic (on the ground that the Catholic religion has not changed in any relevant sense), the problem is of broader scope, as Pope John Paul II wrote in 1991: all those who are “convinced that they know the truth and firmly adhere to it are considered unreliable from a democratic point of view.” Perhaps Blanshard was right to the extent he worried that Catholics have principled reservations about the scope of democratic legitimacy and the sweep of democratic authority. It is widely and justly celebrated that the Second Vatican Council (1962-65) declared the natural human right to liberty of conscience. What the same Council said about the liberty of the Church, the libertas ecclesiae, however, is little noticed, but of at least as much practical significance as what it declared about human conscience. Also little noticed, and also significant, is that the same Council said nothing directly about democracy. In light of these and other facts, this paper argues that faithful Catholics are indeed unreliable from a democratic point of view in the respect that they, in and through their Church, insist that the (democratic) socio-political order must be conformed to higher law and true human rights (through means that are both prudent and otherwise in conformity with valid positive law). Faithful Catholics deny the ultimacy or sufficiency of democracy and what it happens to deliver. This paper was originally delivered as the Yves R. Simon Lecture at the University of Chicago.

Introduction to The Vocation of the Child

Patrick McKinley Brennan — Fri, 04 Jun 2010 08:10:19 PDT

Forgiveness and Self-Love: A Holy Alliance?

Patrick McKinley Brennan — Thu, 10 Dec 2009 08:44:09 PST

The Place of "Higher Law" in the Quotidian Practice of Law: Herein of Practical Reason, Natural Law, Natural Rights, and Sex Toys

Patrick McKinley Brennan — Fri, 04 Dec 2009 09:07:32 PST

Delivering the Goods: Herein of Delegation, Authority and the Mead Case

Patrick McKinley Brennan — Fri, 04 Dec 2009 06:37:07 PST

Persons, Participating, and "Higher Law"

Patrick McKinley Brennan — Fri, 05 Jun 2009 11:03:01 PDT

Equality, Conscience, and the Liberty of the Church: Justifying the Controversiale per Controversialius

Patrick McKinley Brennan — Fri, 03 Apr 2009 12:50:46 PDT

This paper considers the central normative claim of Martha Nussbaum’s Liberty of Conscience: In Defense of America’s Tradition of Religious Equality, viz., that the U.S. Constitution’s religion clauses should be construed to provide equal (and extensive) protection to the vulnerable human faculty called conscience. The paper argues that Nussbaum’s argument from Rawlsian political liberalism that leads to her normative constitutional claim amounts, perversely, to an attempt to justify the controversial by the more controversial. The paper goes on to argue that while equality and conscience are concepts that are reasonably contested, Nussbaum illegitimately gives them priority over the also reasonably contested concept of the liberty of the church(es). The paper concludes by arguing, with the help of Jacques Maritain and William Galston, that the political sphere is better shaped (and limited) by robust respect for the equality of humans, freedom of conscience, and the liberty of the churches (and certain other groups), but without our either pretending that any of them is not reasonably contestable or attempting to mold churches (and certain other groups) in the image of the state. Along the way, the paper evaluates Nussbaum’s claim that Maritain was perhaps the first political liberal.

Review of Thomas J. Rourke, A Conscience as Large as the World: Yves R. Simon Versus the Catholic Neoconservatives (Rowman & Littlefield 1997) (Invited)

Patrick McKinley Brennan — Fri, 20 Mar 2009 11:10:41 PDT

Differentiating Church and State (Without Losing the Church)

Patrick McKinley Brennan — Tue, 03 Mar 2009 06:43:11 PST

There is an ongoing debate about whether the U.S. Constitution includes – or should be interpreted to include – a principle of “church autonomy.” Catholic doctrine and political theology, by contrast, clearly articulated a principle of ”libertas ecclesiae,” liberty of the church, when during the nineteenth and early twentieth centuries the Church differentiated herself from the state. This article explores the meaning and origin of the doctrine of the libertas ecclesiae and the proper relationship among churches, civil society, and government. In doing so, it highlights the points at which church and state should cooperate and the points at which mutual assistance would be ultra vires.

FREE EXERCISE! Following Conscience, Opening Politics, and Developing Doctrine (Review of John T. Noonan, The Lustre of Our Country: The American Experience of Religious Freedom, 1998) (Invited)

Patrick McKinley Brennan — Fri, 27 Feb 2009 12:50:11 PST

Locating Authority in Law, and Avoiding the Authoritarianism of Textualism

Patrick McKinley Brennan — Thu, 26 Feb 2009 09:14:53 PST

Much modern jurisprudence attempts to move the locus of authority away from people with authority in order to locate it instead, for example, in rules or texts. This article argues that authority, wherever it exists, is a quality of the actions of persons. The article mounts this argument by showing how Justice Scalia’s textualism is the legal analogue of a largely discredited form of “Christian positivism,” one that leads to a form of authoritarianism. The article goes on to argue that authorianism can be avoided only by individuals’ and their communities’ becoming authoritative, including in the making and enforcement of law. Relying on a fairly thick normative anthropology to identify what is authoritative, this article mounts a non-liberal critique of the conservative jurisprudential doctrine that lies at the core of the American cult of the Supreme Court.

The Vocation of the Child

Patrick McKinley Brennan et al. — Wed, 13 Aug 2008 08:25:38 PDT