Tag Archives: law

February 15, 2013 · 11:26 am

The Presidency: Knowing When to Say When

Presidents Day is coming up here in the U.S. on Monday, and while these days there really are not any traditions to speak of for this holiday, it is a good opportunity to reflect on the limitations of that office.  Technically the holiday is the official celebration of the birthday of George Washington.  However its proximity to the birthday of Abraham Lincoln, not to mention laziness in both academia and in the popular press, has turned it into a day when we celebrate all of the U.S. Presidents.  Thanks to our incessant need for advertising of course, we are being bombarded this long weekend with images of Washington, Lincoln, and others – even non-Presidents like Benjamin Franklin – trying to sell us cars, bed linens, and so on.

That being said, Washington himself is someone for whom all Americans ought to be deeply grateful to Providence, particularly when we look at how the office of Prime Minister or President in other countries can lead to the implementation of policies completely at odds with the will of the people whom they govern.  Cousin George (he is a distant relation) did not make himself a king by setting up an American monarchy and accompanying aristocracy, even though he was certainly popular enough to do so.  Nor did he cling to power once he achieved it, but instead reluctantly served two terms and stepped down, leaving the office to his political successors rather than to his relations.

Yet historically speaking, our Presidents have not always known when to reign themselves in; we see occasions throughout our history when they have become drunk on power and their own opinion of themselves.  One reason why we have two-term limits for Presidents today for example, is because of the inability of President Franklin Delano Roosevelt to cede power.  We are often told that thanks to Roosevelt’s inspiration, America got through the Great Depression and World War II, and no doubt he must be remembered for that service.  Yet we should also be aware that he was incredibly power-hungry, as we learned from his breath-taking attempts to bend the Supreme Court to his will.

In the 1930′s when FDR and his brain trust came up with sweeping legislation to get Americans to work and to create the foundations of the social welfare system, to his fury he found that lawsuits were being brought against some aspects of his plans, challenging their constitutionality.  Upset that conservatives on the Supreme Court were determining aspects of Roosevelt’s “New Deal” to be unconstitutional, Roosevelt attempted to pass legislation that would have allowed him to pack the Supreme Court with his own appointees, in order to pursue his agenda.  You can learn more about this often-forgotten chapter of American history in Jeff Shesol’s fascinating book, “Supreme Power: Franklin Roosevelt vs. The Supreme Court”.

U.S. Supreme Court Justice Louis Brandeis – certainly not the most conservative of jurists – reacted to the news that FDR was going to attempt to manipulate the Supreme Court with the kind of gravitas with which the old look at the impatient, doomed-to-failure plans of those younger and more foolish than themselves.  On February 5, 1937, Roosevelt sent attorney Thomas Corcoran to hand-deliver a press release to Brandeis before the proverbial poo hit the fan, as Shesol describes:

The president has sent me, Corcoran said. He handed Brandeis a press release. If there had been any way to exclude you from the plan, Corcoran continued, the president would have done so; no offense was intended. Brandeis scrutinized the release, was silent for a moment, then looked up. He asked Corcoran to thank the president for the courtesy. But “tell your president,” Brandeis said gravely, “he has made a great mistake. All he had to do was wait a little while. I’m sorry for him.” Corcoran wondered what Brandeis meant by “wait,” but lacked the nerve to ask. With that, Brandeis shook the young man’s hand and passed through the red velvet curtain.

Fortunately for all of us Roosevelt’s plans eventually fell apart, and after he died during his fourth term in office, Americans had the common sense to pass legislation preventing a President from staying in power again for so long, in so doing looking back to the example of Washington for inspiration.

So as we near George Washington’s official birthday celebration, we Americans can still hope that the tension between the Executive, Legislative, and Judicial branches of government will provide at least the possibility for compromise, and also for prevent those in power from riding roughshod over the will of the people.  Unlike in countries such as Britain, France, and Russia, the head of the ruling political party in the United States does not always get his way.  And that, in my view at least, is a very good thing indeed, as no doubt Washington himself would agree.

George

Detail of “Portrait of George Washington” by Rembrandt Peale (c. 1823)
The White House

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January 11, 2013 · 3:03 pm

Civilization and Contemporary Art – Part II

Yesterday in the first half of this two-part blog post, we explored the question of why a lack of respect for property rights among certain contemporary artists and their aficionados is a departure from some of the basic principles of our civilization.  Today we look at a different, but not unrelated, aspect of how contemporary art and civilization interact.  Specifically, I would like us to think about how much residual right should an artist have in their work?

The Visual Artists Right Act (VARA) was passed by Congress back in 1990, and you would be forgiven for never having heard of it, gentle reader.  In a nutshell, the law was designed to protect artists from having their name attached or detached from works of art without their permission, and from having their artworks significantly defaced or vandalized during their lifetime.  This latter protection includes work which they themselves no longer actually own.  It is in effect largely a moral law, rather than a commercial one, but its application can have significant financial implications.

Back in 2008, mural painter Kent Twitchell received a $1.1 million settlement under VARA from the Federal government and private contractors, who had painted over one of his works, a monument to pop artist Edward Ruscha, without his permission.  The mural was located on the outside of a government building in Los Angeles which was being renovated, and no one contacted Twitchell to let him know that his painting was being destroyed, either to allow him the opportunity to have it removed or for him to seek some sort of legal remedy to prevent its destruction.  Whatever one feels about the art in question, or the size of the settlement, we can certainly understand why an artist would be upset to see something he created being destroyed.  But what happens when an artist decides that the laws protecting his work do not go far enough?

In an article published yesterday in The Art Newspaper,  a curator claimed that prior to a retrospective at the Metropolitan Museum of Art back in 2011, artist Richard Serra made a number of changes to works which had been lent to the exhibition.  In some cases, Serra re-created works of his which had been lost or irreparably damaged, and rather than list their new creation date insisted on dating them from the time when their predecessors had been created.  It was also alleged in the article that Serra threatened a private collector that he would “withdraw” a work of his which was owned by the collector from the owner’s collection, if Serra was not allowed to make the changes he wanted – a charge Serra himself denies.

Serra is arguably among the most prominent contemporary artists working in America today; his works are sought by collectors and museums all over the world.  To be frank, I loathe his work.  Yet let us remained focused not on the man’s art, but on his mindset.  To that end, I found this quote rather telling:

Serra says it is not important whether audiences know which version they are seeing. “There’s no aura of originality because it’s an anonymous surface. It’s a difference without a value. I try to keep surfaces as anonymous as possible.”

To re-create a work of art and then back-date as per Mr. Serra is simply ludicrous, and insulting not only to art collectors, museums, and historians, but also to future generations, who will have to try to figure out exactly when he created what.  If I wrote you a letter today, but dated it to October 12, 1992 because I am copying a letter I wrote you then, does that make the result an actual letter from 1492?  Of course not.  So to argue that re-creating a lost work and back-dating to the past, rather than in the present when it was actually made, is completely nonsensical, and frankly rather disturbing.

This bit of irrational art-speak nonsense on the part of Mr. Serra aside, the really interesting contrast here is between the Twitchell case and the Serra incident.  The former involved the destruction of a public work of art, owned by the public, while the latter involved a work owned by a private individual.  Under long-established principles of our law, a private owner has at least a reasonable expectation that he can do what he wants with the property in his possession to which he owns clear legal title.  It appears that what some contemporary artists are attempting to do, under VARMA and similar laws elsewhere, is to assert that they retain a type of ownership which they can assert at any time they see fit, even once they are no longer the legal owners of one of their works.

Throughout art history there have been examples of artists who, after one of their works leaves their hands, have asked the new owner if they can have the piece back, in order to make some changes or repairs.  Whether or not they are granted this request has always depended largely on the good will of the owner.  While VARMA tries to offer some protections, out of interest for preserving the artist’s reputation, clearly this law was not intended to allow an artist a right to take back possession of his work.

Imagine that you were fortunate enough to possess an original work of art by a major living artist, who one day knocked on your door and insisted that he come in and see how well you were taking care of his work, and that he be permitted to carry it away so that he could make some alterations to it.  You would be well-within your rights to call the police, but then what would the courts ultimately decide?  Do you actually own the work of art, or do you simply possess it in some sort of bizarre tenancy in common?

This is now a serious question, as ridiculous as the situation may be, because more and more artists like Mr. Serra will be using this law to assert what they believe this law gives them, morally.  There is a growing perception among some contemporary artists, and the collectors too afraid to challenge them, that artists have a right to reclaim their work from whoever has subsequently legally purchased it.  If this were to become legal precedent, it would be so outrageous a development in jurisprudence as to call into question many aspects of our real property system, and all for the sake of some very egotistical, well-paid artists with the deep pockets necessary to bring such claims.

As is so often the case historically, the art world is ahead of the curve when it comes to how society is going to change over time.  Recognizing that this is the case, it must be said that far too little attention is being paid to what is going on in contemporary art by those who are simply on the lookout for the next outrageous act of anti-Christian blasphemy.  By staying so narrowly focused, they miss the truly subversive thinking that is going on right alongside such works.

That being said, in considering these matters it is important to point out that not every artist working today believes that the ideas and behavior described in these blog posts are legitimate ways of either thinking or behaving.  I am fortunate enough to call a number of very talented, professional artists my friends, and none of them would behave like the people described in these articles.  Nor should you assume that merely because an artist does not create works portraying recognizable subjects, that they are out to destroy Western civilization.  We will leave that task to Planned Parenthood.

Rather my intent here, as is always the case in my writing, is quite simple: to encourage you to go educate yourself.  And should you find, upon further investigation, that you completely disagree with my concerns, then by all means please come back and engage me in discussion, and tell me so.  For it is only by shedding light on this type of thinking and behavior that civilization can be prevented from crumbling into anarchy.

mural

“Monument to Ed Ruscha” by Kent Twitchell (1987) [destroyed, 2006]
Job Corps Center, Los Angeles

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October 1, 2012 · 10:44 am

Thoughts on the Red Mass

The 60th annual Red Mass, sponsored by the John Carroll Society, took place this past Sunday, September 30th, at St. Matthew’s Cathedral here in Washington. I was fortunate enough to attend, and to have a great view of the proceedings from the St. Anthony of Padua chapel (as you can see below.)  I entered into this event thinking that it was a way of honoring the work that work that other, important people in government do, and asking God’s blessing upon their efforts, but it ended with my realizing, with gratitude, that as a member of that professional community myself, I needed some blessings as well.

If you are wearing a coat and tie early on Sunday morning in Georgetown, it is reasonably obvious that you are probably going to church, since before the tourists descend on the village for brunch and shopping, we locals have it to ourselves for a few hours. I had to leave the house rather early, since previous experience of attempting to get to the Red Mass only half an hour before it started had taught me that was not going to ensure me a seat. As I walked past a cafe in my neighborhood, I saw one of my neighbors in a high-priced fleece, khakis, running shoes, and sunglasses, sipping a tall paper cup presumably filled with a caffe latte, and reading a book entitled “Existentialist Philosophy”. The contrast between the two of us did seem rather a cliché, and I chuckled to myself that it would have made a great Vanity Fair caricature or New Yorker cartoon, but there you are.

Once at the Cathedral the somewhat substantial line moved rather quickly, and I managed to obtain a seat which allowed me to stretch out my legs without striking my shins on the pew in front of me. More importantly, it allowed me to have unobstructed views of both the altar and the ambo. I managed to spot both Chief Justice Roberts and Justice Thomas, though with their seating area being partially hidden by an arcade of columns from where I was, that was the full extent of the six Supreme Court Justices in attendance whom I happened to see – let alone any of the diplomats, members of Congress, or Cabinet officers.

The mass itself had all of the pomp and circumstance one could wish for on such an occasion, as the congregation asked the Holy Spirit to bless the workings of our legal system. I will admit that for much of the first part of the mass, I remember thinking that I was very small – despite towering over everyone seated around me, as I normally do. St. Matthew’s is a very grand church, decorated in a rather imperial, Tolkien-esque fashion, and to be in that physical environment, surrounded by all sorts of powerful office-holders who guide the nation was rather humbling. From the opening welcome by Cardinal Wuerl, acknowledging all of the dignataries seated in the congregation that morning, I really did feel a bit out of place for a time.

Yet during the homily by Archbishop Broglio, His Excellency spoke about something which he himself witnessed during his first year of seminary in Rome. He noted that one of the grand, 19th century Ministry of Justice buildings in the city had begun sinking into the ground, because it was built on poor foundations, and he noted that by contrast, ancient structures like the Colosseum and the Pantheon were still standing despite millennia of abuse and neglect. The idea to take away from it, he suggested, was that the fashionable is transitory: what matters is building on a firm foundation.  The danger was in allowing what might be currently popular in our country to take away from what is true, and he warned us strongly against letting that happen.

This was a great observation to take it and to take away with me, as I reflect on my professional future, but I also realized that there were a few other things to take away as well. The first and most important, was that no matter how important the people inside of that church might be, none of them are as important as the One whose house it is. Yet the second, on a more immediate level perhaps, was to recognize that in praying for our legal system to work justly, and for its ministers to execute their authority rightly, I was also praying for myself in the process. For in my own way I, too, am a part of that system, and hopefully I will be able to do my best to make sure that it is as fair and equitable, as much as any human institution can be.

As a postscript, to my great surprise and delight, one of the lectors at the mass turned out to be a mentor of mine from my undergraduate days at Georgetown, and at the conclusion of mass I must confess I had to “ditch” catching up with friends whom I knew were in the congregation in order to go find her. It was wonderful to catch up and meet her family, and it just so happened that in the process I suddenly found myself being presented to Cardinal Wuerl, whom I have heard speak many times but had never formally been introduced to before. Fortunately I had the presence of mind to kiss his ring before he could shake my hand, but then of course, you would not expect me to do any less.


St. Matthew’s Cathedral in Washington, D.C. before the 60th Annual  Red Mass

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June 28, 2012 · 9:48 am

Before The Tide Comes In: Obamacare and the HHS Mandate

Everyone in the new and social media universe has been predicting that sites like Twitter will be crashing later this morning when the Supreme Court decision on whether to uphold Obamacare or not comes out at about 10:00 am Eastern Daylight Time.  So before the internet is broken, I wanted to share some of the thoughts I took away from last evening’s Conservatism On Tap discussion entitled “After Obamacare”.  It was sponsored by the Intercollegiate Studies Institute and featured Kyle Duncan, General Counsel of The Becket Fund for Religious Liberty, and Professor Peter Lawler of Berry College.

As Mr. Duncan pointed out, the ultimate question before the Supreme Court is whether it is within the power of Congress under the Commerce Clause to mandate that people purchase health insurance: in other words, can Congress create commerce by forcing people to engage in it?  The average legal expert tends to believe that one cannot do this, at least as far as the individual mandate is concerned, but then the question becomes whether the law is severable, i.e. can parts of the law still survive even if the individual mandate is removed.  For example, if the individual mandate alone is ruled unconstitutional, does the HHS mandate remain in place, since that specific issue is not presently before the Supreme Court?

One of the analogies Mr. Duncan made last evening was particularly striking, whether one agrees with it or not.  With respect to the HHS Mandate itself, one can make the argument that Obamacare is a mortgage on our Constitutional freedoms, and the HHS Mandate limiting religious freedom is the first installment payment which is coming due.  Thus, if the Supreme Court does not strike down Obamacare in its entirety, then the Becket Fund and others plan to continue their lawsuits against the HHS Mandate, and that will be the next wave of cases generated by this law to be making their way up to the Supreme Court.

Professor Lawler pointed out that the Congress which passed Obamacare in the first place no longer exists.  Thus, if for some reason it is overturned in whole or in part, this Administration – even if it survives in November – would not have the chance to try again, unless there was an entirely unanticipated Democratic electoral tidal wave that flooded into both the House and Senate.  He also commented that now that some on the left have taken up the banner of crying judicial activism anticipating the overturn of Obamacare, they are going to have a problem.  The only way to get the public on your side with a cry of judicial activism is when the public thinks that the courts have gone too far; since Obamacare is so widely unpopular, the strategy of attacking the Supreme Court probably will backfire in the face of anyone on the left who attempts it.

The reality that everyone has to face is that employer-based healthcare programs are not really sustainable, Professor Lawler believes.  Healthcare will eventually have to devolve either to the individual or the government, and policy wonks understand this but the general public does not.  Ask your average GOP voter for example what he thinks of losing his employer-funded healthcare, and he panics.

Policy wonks have been exploring the changes that need to happen mostly with other policy wonks, rather than with the general public, and this needs to change because employer-provided healthcare cannot survive our demographics.  When people are living longer, and having fewer children, the system falls apart.  Unless people start taking up smoking and bad eating habits again and dying in their 50′s and 60′s, and having three or more children each, we cannot continue to have the system drawn up 30 or 40 or more years ago.  When planning for the future, Americans are going to have to get used to the fact that there will be uncertainty, and Mitt Romney needs to be preparing people for this, rather than trying to cover up reality with an unworkable mess, which is what this Administration made, regardless of whether or not the law itself is unconstitutional.

With respect to the HHS Mandate, discussion centered around the notion that the religious employer exemption is an example of the government interfering and telling people how to arrange themselves so that they can qualify as religious “enough” to meet an arbitrary definition selected by this Administration.  In fact, when coming up with the definition of what is a religious employer they simply chose the most restrictive possible, so that for example EWTN, the Catholic television and radio network, would not qualify as a religious employer because they do not solely broadcast their programming to Catholics.  The same would hold true for Catholic hospitals, universities, and so on, unless their primary activities were proselytizing and the exclusive care of their members.

These are some interesting points, then, for us to consider as we await the Supreme Court’s decision today.

“The Great Wave off Kanagawa” by Katsushika Hokusai (c. 1826-1833)
Library of Congress, Washington

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June 27, 2012 · 9:24 am

A Bumpy Night Ahead

In the classic party scene in “All About Eve” (1950), which for my money features the best film script ever written, Bette Davis utters her most famous line in cinema, “Fasten your seatbelts: it’s going to be a bumpy night.” Yet in the set-up to that iconic moment, in a conversation between Davis, Gary Merrill, Celeste Holm, and Hugh Marlowe, the last makes a prescient observation that something is looming over the evening’s festivities: “The general atmosphere is very Macbeth-ish. What has, or is about to happen?” For those interested in the outcome of health care reform legislation in the United States, the mood right now could be construed as something rather similar.

This evening I will be attending a discussion featuring Kyle Duncan, General Counsel at Becket Fund for Religious Liberty, Peter Augustine Lawler, Professor at Berry College, and Father James Schall of Georgetown University, entitled “After Obamacare”. The panelists will examine the Supreme Court’s review of the Patient Protection and Affordable Care Act of 2010, as challenged in two Florida cases: National Federation of Independent Business v. Sebelius and Florida v. United States Department of Health and Human Services. The timing of this panel discussion is rather good, for it is widely expected that the Supreme Court will issue decisions in these cases tomorrow.

The title of tonight’s event could be understood in different ways. One way is to use the line of thinking taken by a number of pundits, who assume that some or all of Obamacare will be found unconstitutional by a majority of the Court. However another would be to consider what happens if Obamacare is not, in fact, overturned or modified in some way by the Court. If it is legal, then pending some action by subsequent legislation, it will eventually no longer be able carry the admittedly polarizing term “Obamacare”, having stood up to judicial scrutiny.  Even though many believe that the doom is about to fall on this not-very-beloved part of the President’s agenda, the question is whether the forest is coming to Macbeth, or not – and no one really knows.

For Catholics like myself, the real question for us is what will happen with the so-called HHS Mandate, based on what the Court decides tomorrow. We are now in the midst of the Fortnight For Freedom, which I wrote about previously, and many events are taking place across the country to raise awareness of what the enforcement of this particular part of the healthcare law will mean to religious institutions. This includes a huge mass which will be held on the 4th of July here in Washington, which I will be attending, and at noon on that day Catholic churches and other religious communities who are participating with us will be ringing their church bells at noon in solidarity for the right of all to practice their religion free from government interference.

Lawsuits against the present Administration challenging the constitutionality of the HHS mandate are now working their way through the court systems, but have not yet made their way to the Supreme Court. Thus, unless tomorrow’s decision is a complete or substantial rejection of the new health care law, the fight against this aspect of the new law will likely have to go on. While there are many in new and social media who are gleefully anticipating that the Court will rule one way or another tomorrow, the truth is that the Court has surprised us many times before. So even though I am looking forward to tonight’s event, and hearing the opinions of those who have thought long and hard about these matters, the truth is that we simply do not know what we are in for.

In “All About Eve”, the party scene concludes with everyone stumbling off home, after an evening spent bickering viciously with one another while sipping highly potent cocktails – as Bette Davis observes, party guests don’t care what they drink as long as it burns. As a country we have been having such an evening for the past two years now, perhaps not as festive an evening but certainly with a burn to it, as this law has made its way through the court system. What the hangover will be like after tomorrow, no one wants to think about right now, but whatever the outcome, one feels certain that a hangover of some kind there will be.


Celeste Holm and Bette Davis in “All About Eve”

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