Irene Merker Rosenberg, 1939-2010

I am sad to report the death of my colleague, Irene Merker Rosenberg. Professor Rosenberg was the first woman tenured at the University of Houston Law Center. She was a beloved teacher of constitutional law and an excellent scholar. Born in Brooklyn, she received her education at The City College of New York and New York University School of Law. She joined the Law Center faculty in 1974 with her late husband Yale Rosenberg, whom she met at NYU.  In addition to her numerous writings on criminal law and juvenile justice, Irene wrote extensively about Jewish law and its relationship to American constitutional and criminal law.

In an essay about the fortieth anniversary of the juvenile law case  In re Gault, Irene wrote, "Birthdays and anniversaries, especially those ending in zero, tend to put one in a reflective mood. I recollect that as I approached my fortieth, fiftieth, sixtieth, and soon my seventieth birthdays, I found myself thinking about my past, trying to figure out what went wrong, what went right, and why; how I could fix that which was fixable and learning to live with that which was not, mindful of the old adage that one must have the wisdom to know the difference between the two." Irene was a wise woman who shared her insights with students and colleagues. I am sorry that she didn't make it to her 80th birthday and continue to share her wisdom with the rest of us.

Further remembrances of Irene are available here and here.

   

The Tea Party's Constitution

          Tea Party members have put the Constitution back into politics with their frequent invocations of the Constitution as the basis for their movement. Because the Constitution serves as the basis of Tea Party politics, it is important to figure out how the Tea Party interprets the Constitution. Professor Jared Goldstein has written a fascinating essay explaining The Tea Party's Constitution and examining the intellectual roots of the Tea Party's constitutionalism. 

          It is always tricky to describe a person or a movement as fundamentalist, because the word can have pejorative implications. Professor Goldstein non-pejoratively characterizes the Tea Party constitutionalists as fundamentalist because they look to the past for their vision of government and seek to recreate a golden age from the past while criticizing much of modernity. The Tea Party fundamentalists criticize the current version of the American government and long to recreate the Founders' vision of the nation.

          The problem is that the Founders' vision, as interpreted by the Tea Party, presents the Constitution as a divinely ordained blueprint for government, which implements Biblical principles. Any violation of God's law is therefore unconstitutional. According to the Tea Party, the five central constitutional principles are devotion to God, limited government, free markets, personal property, and individualism.  Professor Goldstein shrewdly observes that the Tea Partiers spend little time discussing the actual text of the Constitution and instead rely upon their own principles of God's law. A participant in a recent Tea Party rally, for example, prepared a sort of concordance for the Preamble, connecting its language of justice, liberty, defense, tranquillity and so on to verses in the Bible. 

          Viewing the Founders' era as the golden age to be recreated today suggests that the Constitution was better before the Civil War amendments were added to it.  Indeed some Tea Partiers have backed the repeal of the Fourteenth Amendment, which has given civil equality to slaves, women, gays and lesbians as well as reproductive and sexual privacy rights to men and women, heterosexuals and homosexuals, and married and single individuals. That is one of the problems with fundamentalism: the golden past that fundamentalists idealize was not ideal for slaves and minorities. A return to that past would not be a positive development for many Americans whose political and voting rights were protected after the Civil War amendments, but not before.

          An additional problem with constitutional fundamentalists is that anyone who disagrees with their principles is perceived to be anti-American. Hence the vigorous attacks on President Obama as not just wrong but un- or anti-American, Muslim and communist. 

          Goldstein concludes: The Tea Party view of the Constitution thus is the antithesis of Justice Holmes’ notion that the Constitution was “made for people of fundamentally differing views”—in other words, that the Constitution establishes a framework for resolving fundamental differences through political and legal processes. In … the Tea Party’s view, the Constitution itself establishes the fundamental values—the Founders’ principles—which are eternal and to which the nation must adhere if it is to survive. The Tea Party’s Constitution does not merely provide a framework for resolving differing political views; the Constitution itself resolves those differences.

          In other words, the Tea Partiers are trying to turn the Constitution into a biblical religion that applies to everyone....a goal that the Constitution itself prohibits in the First Amendment. 

Where are the Atheist Women?

          Atheist groups can be as sexist as anyone else. But Ms. Magazine wants you to know that there are many prominent women atheists. More importantly, going back to Madalyn Murray O'Hair, women have been leaders of many atheist groups. 

          Murray O'Hair filed a lawsuit on behalf of her son, William J. Murray III, arguing that his Baltimore public school violated the First Amendment by conducting Bible reading and prayers every school morning. Murray's case was later consolidated with the famous Schempp case, where the Supreme Court ruled in 1963 that the Establishment Clause does not allow the public schools to sponsor prayer and Bible reading.  

         In case you are wondering who are contemporary female atheists, Ms. has a short list and a large list of awesome female atheists. There is also a list of women atheist bloggers.

German Woman Becomes Rabbi

          Alina Treiger, the first German female rabbi since the Holocaust, has been ordained. I never thought becoming a rabbi was a possible profession for a woman, she said. 

          Regina Jones, the first German female rabbi, was ordained in 1935 and killed at Auschwitz in 1944. Germany has other women rabbis but they were educated and ordained elsewhere.

No Female Vendors

          In Saudi Arabia, the top board of senior Islamic clerics has called for a ban on female vendors. The powerful committee said in its ruling Sunday that the mixing of sexes is forbidden and women should not seek jobs where they could encounter men. The Saudi king has been working to modernize the kingdom and to prevent the clerics from issuing such rulings.

Abortion Theology Should Not Be Abortion Law

          My old friend, theologian Charlie Curran, gave a lecture at Southern Methodist University last week that attracted some controversy in the Catholic world. Curran became a distinguished professor at SMU after he was fired from Catholic University many years ago for criticizing the Roman Catholic Church's teaching forbidding contraception (even for married couples). 

        In the lecture,  Curran criticized the church's political and legal strategy toward abortion law in the United States. He did not challenge the church's underlying moral opposition to abortion. Although in the past the church encouraged Catholic voters to reflect on a range of moral issues, Curran observed, today the bishops “now clearly state abortion is the primary issue.” Their rationale for doing so, he said, rests on their conviction that other issues of public policy and law “involve prudential judgments,” but that abortion laws “deal with something that is intrinsically evil and does not involve prudential judgments. Catholics have certitude on the abortion law issue.”

          As a theologian, Curran identifies four reasons internal to the church's teaching why the church is wrong to pursue such an absolutist position on abortion law while refusing to be so absolute on other matters of social justice, such as issues of just war or poverty. Readers interested in theological debates should read Curran's lecture and consider those four arguments, which are: 

• “The speculative doubt about when human life begins;
• “the fact that possibility and feasibility are necessary aspects involved in discussions about abortion law;
• “the understanding and role of civil law;
• “and the weakness of the intrinsic evil argument.”

         Most interesting to non-theologians should be Curran's argument that the religious freedom approach to civil law (which Curran advocates) requires recognition that people of religious faith disagree about the morality of abortion and women's rights. Once there is such disagreement, absolute legal stances based on moral certitude are inappropriate.

          I think this is where the Catholic bishops and many other religious citizens have gone astray over the last thirty years. They assume that their religious belief is absolutely correct and then try to impose that belief on everyone else through force of law. Curran has long tried to persuade Catholics that Catholic theology does not require them to understand the relationship between law and morality in this way.
          I think Americans who take the Constitution seriously should learn how mistaken it is to think that individual moral beliefs should become the universal law. The success of our government depends on laws that respect everyone's religious freedom and not just one group's religious beliefs.