Mirror of Justice

Paradise Found, Limbo Lost

New York Times
January 1, 2006

Op-Ed Columnist
Paradise Found, Limbo Lost
By HAROLD BLOOM

New Haven

I feel both personal and literary regrets that, if Pope Benedict XVI gets his way, in perhaps a year or so Limbo will be in limbo (as it were). The issue spurs a reminiscence. Walking down Broadway on a chilly Upper West Side morning in 1972, I bumped into my good acquaintance, the novelist Anthony Burgess, and at his request I resigned to him the bottle of Fundador I had just purchased at a nearby liquor store. Standing in a tattered robe and blinking in the sun, after a night devoted to composition, Burgess required immediate medication.

Besides, he had introduced me to this invigorating Spanish brandy only a few weeks before, so I urged him to retain the bottle after he had absorbed two prodigious swigs outdoors. As I wended back to the liquor shop, he called out after me: "The debt shall be paid, Bloom! When you arrive in Limbo, I will await you there with a bottle of Fundador."

A lapsed Roman Catholic (like his idol, James Joyce), Burgess was being unduly optimistic about our reunion on the Other Shore, since neither of us qualified for Limbo, a state that the church, largely at the prodding of Thomas Aquinas, designated for unbaptized babies and the Hebrew patriarchs who preceded Jesus.

Dante, of course, in Canto IV of "The Inferno," went beyond Aquinas, and thronged Limbo with the philosophers and poets of the ancient world; primarily his beloved guide, Virgil, but also Homer, Horace, Ovid and others, and even literary characters like Hector and Aeneas. Rather surprisingly, Dante also admitted three Muslims: the warrior Saladin and the philosophers Avicenna and Averroes.

Limbo has a rich literary history, in honor of which I hope the pope and his International Theological Commission will refrain from exiling this amiably ambiguous realm. Hell, Purgatory and Heaven may seem rather strictly demarcated and limited destinations, without Limbo as an interesting outrider. In the Italian Renaissance poet Luduvico Ariosto's "Orlando Furioso," the knight Astolfo visits the moon's Limbo and discovers there all of earth's wastages: talents locked up in named vases, bribes hanging on gold hooks, and much besides.

In "Henry VIII," Shakespeare uses the "Limbo of the Fathers" as a synonym for prison, while John Milton in "Paradise Lost" gives us the Paradise of Fools as a "limbo large and broad," where winds blow about Roman Catholic cowls, hoods, habits, relics, beads, indulgences, pardons and Papal Bulls.

The 18th-century satirical poet Alexander Pope expands on Ariosto and Milton in "The Rape of the Lock," where the lunar Limbo contains "the smiles of harlots and the tears of heirs." Much more somber is the "Limbo" of the Romantic poet Samuel Taylor Coleridge, most famous for "The Rime of the Ancient Mariner" and "Kubla Khan." Coleridge's Limbo is not on the moon, nor on Hell's borders, but on the phantasmagoric line between what is and what is not, the waking nightmares of an opium addict: "The sole true Something - This! In Limbo's Den/It frightens Ghosts, as here Ghosts frighten men."

The Vatican's motives for changing its theology doubtless are benign: worried African and Asian converts whose babies die before baptism will be reassured that Paradise, not Limbo, awaits the lost infants. And in any case, non-Catholics like myself need not mix in matters relevant only to the faithful. Still, a few days ago I received an anonymous phone call from a woman who assured me that my most recent book certainly would send me to Hell. I would prefer Limbo, if only to share Fundador again with Anthony Burgess.

Harold Bloom is the author, most recently, of "Jesus and Yahweh: The Names Divine."
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Culture and Catholic Engagement with the broader community

I am reading Rocco Buttiglione's interesting and insightful book, Karol Wojtyla:  The Thought of the Man Who Became Paul John Paul II.  I thought I’d share one paragraph that caught my attention this morning.

“After the Communists came to power, [Cardinal} Sapieha realized immediately that culture would be the decisive battleground between them. … From the beginning, the Polish bishops decided not to petition on their own behalf against the regime which violated their ancient rights…  They chose instead to take a position in support of fundamental human and national rights, renouncing any particular reclamation which would have indicated that they made a distinction, not to say a contradistinction, between human rights and religious rights, between the inspiration of the nation and that of the Church.”

It seems to me that their decision was not only a correct one for them (as history seems to have confirmed) but provides powerful insight for our own time.  What do others think?

Michael S.

Time to Get a New Lawyer . . .

I'm not sure whether a private school in California will be held liable under state discrimination laws for kicking out two girls who confessed having "lesbian" feelings for each other (HT: ACS), but I'm fairly confident that the following argument offered by the girls' attorney is not going to carry the day:

"There's a lot of hypocrisy going on here," [the attorney] said. "The school is claiming the girls were expelled because their conduct wasn't within the Christian code. But at the same time, (the school) has students who aren't Christians and are even Jewish."

Rob

Those Crazy (Teenage) Evangelicals

The New York Times often gives the impression that seriously religious folks, especially evangelical Christians, are three-horned creatures that just dropped in from outer space.  I initially wondered why the paper was giving such prominent coverage yesterday to a new study's fairly ho-hum findings that four percent of American teenagers attend youth group at a church different than the one their families attend.  The significance of the study, I soon learned, is that it gave the Times a chance to talk about just how creepy those youth group activities are.  The thesis is evident in the article's conclusion:

The band played a simple rock song, and everybody shouted the lyrics over and over: "Bless the Lord with all that's in me. Bless the Lord. May kingdoms fall and rulers crawl before your throne."

Emily threw her head back and sang and sang. Then she fell to her knees. Bent forward at the waist, rocking, she sang into her curled body what others shouted to the rafters: "I want to give you all of me. I'm giving you all of me."

The conclusion has nothing to do with the study or its findings, of course.  But readers are now on notice that the three-horned creatures are targeting our teenagers. 

Rob

Architecture, Urban Planning, and the Good Life

Here's an essay -- now more than ten years old -- by friend-of-MOJ and Notre Dame professor Philip Bess, called "A Dutch Master and the Good Life."  The piece is a reflection on Jan Van Eyck's painting, completed in 1432, "The Mystic Adoration of the Lamb."  The essay is too rich to capture here, but anyone interested in the discussion we've been having, off and on, about urbanism, planning, architecture, sprawl, and human flourishing will want to read it.  Here's a taste:

[The painting] is on the one hand a specifically Christian representation of the good life, but is also on the other hand-in its portrayal of the context of the good life as both city and garden-a representation of the good life with rational appeal across a variety of human cultures, and one specifically understandable in terms of the philosophical tradition of natural law theory.

The nature of the good life for human beings is a perennial concern of natural law thinkers. But where modern consumer culture would have us consider the good life in terms of personal freedom and creativity, the possession of wealth, power, fame, health, sexual vitality-not to mention cars, gym shoes, and beer-many if not most variants of the natural law tradition would view all of these admitted goods as less important to the good life than moral virtue (character habits of temperance, courage, justice, prudence, friendship, magnanimity, steadfastness, etc.) and intellectual virtue (habits of mind appropriate to particular practical arts and/or theoretical sciences) exercised in projects engaged in with others, and most especially in a city. In natural law theory, in other words, the good life for human beings is the life of virtue lived in community.

Religion and Societal Health

A few months ago, I linked to a paper, "Cross-National Correlations of Quantifiable Social Health with Popular Religiosity and Secularity in the Prosperous Democracies," published in the Journal of Religion and Society," which concluded that (among other things), "[i]n general, higher rates of belief in and worship of a creator correlate with higher rates of homicide, juvenile and early adult mortality, STD infection rates, teen pregnancy, and abortion in the prosperous democracies."  Also:  "The widely held fear that a Godless citizenry must experience societal disaster is therefore refuted. Contradicting these conclusions requires demonstrating a positive link between theism and societal conditions in the first world with a similarly large body of data - a doubtful possibility in view of the observable trends." 

Here, in the latest issue of Touchstone Magazine, is an essay by George Gallup, Jr.,responding to the study.  (Here is a link to another interesting response and critique of the study.)

School Choice for Katrina victims?

Professor Friedman links to some press releases commenting on the recently passed Defense Appropriations bill, which includes "tuition reimbursement up to $6,000 per student ($7,500 for special education students) for public or private schools that provided educational refuge" to students displaced by Katrina.

Kevorkian biopic?

Bioethicist Wesley Smith writes, over at National Review Online, that a laudatory biopic is in the works about Jack "Dr. Death" Kevorkian.  In do doing, Smith reminds us why even those who support (and I do not) a legal or moral right to assisted suicide should regard Kevorkian as a ghoul.

Church-State Law "Top Ten List"

Here, courtesy of Professor Friedman's invaluable Religion Clause blog, are the "top ten" church-state / free exercise developments:

1. Supreme Court rules on 10 Commandments displays.
2. Intelligent Design is at center of public controversy.
3. Supreme Court nominees are scrutinized over their 1st Amendment religion views.
4. The "Christmas wars" heat up-- "holiday" vs. "Christmas".
5. Government funding of faith-based organizations remains controversial.
6. Proselytization at the Air force Academy creates controversy.
7. RLUIPA is upheld as constitutional by Supreme Court and lower courts.
8. Courts strike down sectarian legislative prayers.
9. Christian student groups demand university recognition: non-discrimination vs. free exercise.
10. Accommodation of Muslim religious beliefs and practices increases.

I would add, "Catholic clergy-sex-abuse scandal prompts various interferences, or proposed interferences, with the Church's independence."

Thoughts?

Evening in the Palace of Reason

I've just started (what I think will be) a fascinating book:  "Evening in the Palace of Reason:  Bach Meets Frederick the Great in the Age of Enlightenment," by former Time managing editor, James Gaines.   (Here is a review -- one of the few I've been able to find -- in the Guardian; and here is a discussion on the radio program, "On Point.")  I am not far enough in to provide a good review, but here is a "taste" from the publisher:

One Sunday evening in the spring of his seventh year as king, as his musicians were gathering for the evening concert, a courtier brought Frederick the Great his usual list of arrivals at the town gate. As he looked down the list of names, he gave a start.

"Gentlemen," he said, "old Bach is here." Those who heard him said there was "a kind of agitation" in his voice.

So begins James R. Gaines's Evening in the Palace of Reason, setting up what seems to be the ultimate mismatch: a young, glamorously triumphant warrior-king, heralded by Voltaire as the very It Boy of the Enlightenment, pitted against a devout, bad-tempered composer of "outdated" music, a scorned genius in his last years, symbol of a bygone world. The sparks from their brief conflict illuminate a pivotal moment in history.

Behind the pomp and flash, Prussia's Frederick the Great was a tormented man. His father, Frederick William I, was most likely mad; he had been known to chase frightened subjects down the street, brandishing a cane and roaring, "Love me, scum!" Frederick adored playing his flute as much as his father despised him for it, and he was beaten mercilessly for this and other perceived flaws. After an unsuccessful attempt to escape, Frederick was forced to watch as his best friend and coconspirator was brutally executed.

Twenty years later, Frederick's personality having congealed into a love of war and a taste for manhandling the great and near-great, he worked hard and long to draw "old Bach" into his celebrity menagerie. He was aided by the composer's own son, C. P. E. Bach, chief keyboardist in the king's private chamber music group. The king had prepared a cruel practical joke for his honored guest, asking him to improvise a six-part fugue on a theme so fiendishly difficult some believe only Bach's son could have devised it. Bach left the court fuming. In a fever of composition, he used the coded, alchemical language of counterpoint to write A Musical Offering in response. A stirring declaration of everything Bach had stood for all his life, it represented "as stark a rebuke of his beliefs and worldview as an absolute monarch has ever received." It is also one of the great works of art in the history of music.

Set at the tipping point between the ancient and the modern world, the triumphant story of Bach's victory expands to take in the tumult of the eighteenth century: the legacy of the Reformation, wars and conquest, and the birth of the Enlightenment. Most important, it tells the story of that historic moment when Belief -- the quintessentially human conviction that behind mundane appearances lies something mysterious and awesome -- came face to face with the cold certainty of Reason. Brimming with originality and wit, Evening in the Palace of Reason is history of the best kind, intimate in scale and broad in its vision.

Is Remorse Overrated?

Emory's Martha Duncan has posted her new article, "So Young and So Untender": Remorseless Children and the Expectations of Law.  (HT: Solum)  I'm not sure what to make of the thesis, but it sounds intriguing:

This article employs psychology, sociology, and literature to investigate the expectation of remorse in the juvenile and criminal justice systems. More specifically, it presents seven in-depth case studies of juveniles who were charged with murder or attempted murder and whose apparent lack of remorse played a salient role in the legal process. Through these case studies, the article challenges the law’s assumption that any decent, redeemable person, regardless of age, will exhibit sorrow and contrition after committing a heinous crime.

Beyond challenging the courts’ ability to interpret the emotional state of a juvenile, the article questions the validity of remorse as a predictor of future character. Drawing on Biblical and literary examples and the psychoanalytic theory of the superego, the article suggests that remorse, as the most agonizing form of guilt, may actually undermine the ability to “turn one’s life around” and begin anew.

Rob

Non-AALS DC Conference

Every year the Law Professors' Christian Fellowship sponsors a conference during the AALS annual meeting. Last year's confab in San Francisco was on the topic of "Taking Christian Legal Thought Seriously."  This year's will be held in DC on Saturday January 7 from 1130am to 600pm at the Washington Hilton at 1919 Connecticut Ave, and will be co sponsored once again by the Lumen Christi Institute. I assume you can register at the door for the $35 fee, which covers lunch. The first panel, which begins at 100pm, is entitled "The Faithful Judge: How Can a Judge Be Faithful to Both Christ and the Law?". The speakers are John Garvey (BC), Ken Starr (Pepperdine) and Steffen Johnson (US Office of Legal Counsel), and the moderator is yours truly. The second panel is at 315pm on the topic of "A Christian and Legal Response to Katrina: Race, Environment and the Role of Government." The speakers are John Nagle (ND), Vince Rougeau (ND), Rob Vischer (St.T), and the moderator is Amy Barrett (ND).  I hasten to point out that three of the speakers/mods are present or past MOJ-ers. Kudos to John Breen (another MOJ vet), Bob Cochran and John Nagle for putting together this interesting program. This program is open to all (with $35!), regardless of whether you are attending the AALS.

--Mark

Australasia Bishops back celibate gay priests

Thought that this small item from The Tablet (12/10/05) would be of interest to MOJ-readers.

Australasia Bishops back celibate gay priests.

AUSTRALIA’S CATHOLIC bishops have welcomed the Vatican’s instruction on homosexual men seeking ordination, while endorsing those priests who are homosexual and faithful to their vows of celibacy.

In a brief but carefully worded statement issued after their recent plenary meeting in Sydney, the bishops said that while the document – officially released last Tuesday but leaked to The Tablet the previous week – repeated matters previously addressed by the Vatican, “we welcome the clarification that the Church does not see as fit candidates for priestly ordination men who are homosexually active, those who have deep-seated homosexual tendencies and those who support gay culture.”

However, the bishops noted that the document did not call into question “the validity of the ordination and the situation of priests in whom homosexual tendencies emerged either before or after ordination. It makes clear that all priests are called to live a life of chastity.”

The president of the bishops’ conference, Archbishop Francis Carroll of Canberra and Goulburn, told The Tablet that the bishops wanted to reassure priests in the light of the Vatican’s instruction. “We had a pastoral concern for priests already ordained who may acknowledge that they are homosexual and certainly did not want them to feel in any way threatened,” he said. He added that he did not believe any priests would have felt any threat to their continuance as priests if they were doing their best to live celibate lives.

“Some of the earlier speculation would have had us believe that it would have been a severer document than it has turned out to be,” he said, adding that the document outlined what was already in place in Australian seminaries.

Michael Kelly, a gay Catholic writer and activist, wrote in Melbourne’s The Age newspaper on 29 November that the instruction was just the latest stage in the Vatican’s campaign to halt the progress of civil and spiritual liberation for gay people. “This campaign has revealed an ugly side of the Church, a side that rejects modern science and psychology, forbids dialogue, and uses power as a blunt instrument of control,” he said.

A poll earlier this year found that three-quarters of Australia’s Catholics do not believe homosexuality is immoral.

Mark Brolly, Melbourne
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Eavesdropping and "omniscience"

I like The Revealer, but Jeff Sharlet's claim (linked to here by Rob) that the recent reporting (not "revelations"; there is, I think, a bit of a "shocked, shocked!" quality to many of the critics' reactions) about the Administration's electronic eavesdropping on conversations thought to involve persons connected with an international terrorist organization (is this "domestic spying"?) reveals a widespread "acceptance of omniscience as a legitimate aim of government" is a bit of a stretch.  It does not reflect a misplaced or idolatrous desire for "omniscience" for an electrician to want to know everything he possibly can about the ancient and possibly dangerous wiring in my house before he works on it.  And -- putting aside, for the moment, the policy, legal, and military merits of the Administration's eavesdropping -- it does not seem to reflect a misplaced hunger for omniscience for government to want information that, it is reasonably argued, is essential to carrying out a task that everyone believes is at the heart of its obligation to the common good.

For two good posts on the legal and constitutional issues, read Orin Kerr and Cass Sunstein.

The Theology of Domestic Spying

The Revealer's Jeff Sharlet writes:

The ongoing revelations of the Bush administration's domestic spying don't make for a religion story, but the disclosures do echo theological concerns. At issue is omniscience, the government's power to know whatever it wants about whomever it wants. Bush expanded that power and defends doing so. So far, so political. The theology comes in the mainstream liberal response.

At first glance, it seems to be outrage. But look again. Here's Newsweek's Jonathan Alter on "Hardball": "The critics of the president in this case are not trying to weaken national security. It's not that we're eavesdropping, it's how we're eavesdropping..."

Imbedded in this statement is the acceptance of omniscience as a legitimate aim of government. The only remaining argument is over the social contract that shapes the government's acquisition of information. But since we're talking about potential omniscience here, a better term than social contract might be "covenant." Biblical language is necessary to describe potentially biblical power. And since Bush's critics have been so cowed by the need to fight "the enemy" -- an abstract figure, rarely named -- that they accept the implicit premises of the covenant of omniscience, if not the precise terms, isn't Bush correct to respond out of the whirlwind? "Where were you when I defended the nation?"

That's the theological trap mainstream liberals have walked into. The only way out is to re-think the theology; or better yet, to scrap it all together and accept a government that isn't all-knowing.

Rob

Mashed or Latkes?

The wonderful religion-in-media blog Get Religion has an interesting post exploring our culture's tendency to embrace inclusiveness to the point of absurdity, exemplified by the press coverage of the first night of Hanukkah falling on Christmas for the first time since 1959.

Rob

Cultural Strata and Christian America

Guest-blogging for Andrew Sullivan, Ross Douthat laments the cultural status of religious America:

America has a lowbrow culture that's still pretty religious, but whose religiosity tends to be, well, lowbrow - a lowest-common-denominator mix of self-help spirituality and New Age mush. And the highbrow culture, meanwhile, isn't religious at all: it's not anti-religion, exactly, but it definitely considers religious belief an oddity and an anachronism, and orthodox Christian belief dangerously close to fanaticism. Which is one of the reasons that most religiosity in America is so lowbrow - because the highly intelligent people who might elevate the level of religious discourse have their faith leeched out of them by their immersion in the highbrow, in its assumptions and its prejudices. And the people who complain about this - about how we don't have any more Reinhold Niebuhrs, and isn't it a tragedy? - tend to be exactly the people who in an earlier era would have been the Niebuhrs, but who now partake of what Richard John Neuhaus once called "the pleasures of regretful unbelief."

What we need, then - and by "we" I mean Christians, though I obviously think there would be benefits to non-Christians as well - is a more highbrow Christianity, and one that doesn't prostrate itself on the altar of political correctness, as token highbrow Catholics like Garry Wills are wont to do. Perhaps "culture war" is the wrong word to use in this context, since we don't necessarily need more Christians making the case against same-sex marriage, or pushing all their chips into the battle over courthouse displays in Alabama. We need more Christians writing good novels and essays and doctoral theses, and television shows and movies and music - all of which might inter alia make the case for a Christian understanding of, say, sexuality, but which would be primarily works of art and intellect and not polemics, creating a cultural space rather than just a political movement.

We can't expect any favors: The doors of highbrow American culture have been closed against that sort of thing for decades now, and you can't expect the New Yorker or the New York Times to just throw them open - why should they? They're content with the world they've made, in which Philip Pullman is a hero, C.S. Lewis is a sad "prisoner" of his religious belief, science is always under assault from fundamentalism and monotheism is an easy whipping boy for all of history's ills. Christians keep insisting that this world has it all wrong, of course, but it's not enough to say it - we need to show them.

Richard John Neuhaus responds:

Douthat is right, of course, but there is more to be said on this. (When isn’t there?) Lowbrow, anti-intellectual, and downright vulgar Christianity in the public square is an embarrassment. But, in defending the constitutional rights of religion in public, one has no choice but to defend what shows up to be defended. In coming to the aid of those suffering from anti-religious discrimination, I have often wished for a better quality of victim. You don’t always get to choose your battles, or your allies.

I confess to having little patience with Christians of fastidious taste who don’t want to be associated with “them.” So much do they want to distinguish themselves from “them” that they usually end up on the other side. The deeper cultural, historical, and theological reality is that “they” are us. Not all their causes are ours. But their cause (if not always their way) of witnessing to the lordship of Christ in the face of a sub-pagan highbrow culture is ours.

Rob

Becker-Posner on Capital Punishment and Deterrence, Con't

For those of you interested in the discussion about whether capital punishment deters murder (here and here),  Becker-Posner continue to opine ... though it seems to me from reading their interesting Christmas Day posting (here) that they still have not read the Donohue-Wolfers paper (here).  Well, once the paper is published (as soon it will be) in the Stanford Law Review, few lawyer-economists will not have read it.

Just to be clear:  The Donohue-Wolfers paper doesn't argue that capital punishment does not deter; rather, it argues that econometricians cannot say, based on the data that is available or is likely to become available, that capital punishment reduces the incidence of murder ... or that it increases the incidence of murder ("the brutalization effect").  According to Donohue-Wolfers, econometricians *can* say that whether capital punishment reduces the incidence of murder or, instead, increases it, the effect is very small.
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Kitzmiller on the Content of Religious Belief

I appreciate the posts by Rick and Amy about the Kitzmiller intelligent design ruling, and I simply want to underscore how remarkable I found Judge Jones' statement that:

Both Defendants and many of the leading proponents of ID make a bedrock assumption which is utterly false. Their presupposition is that evolutionary theory is antithetical to a belief in the existence of a supreme being and to religion in general.

I know many folks for whom evolutionary theory is antithetical to their religious beliefs.  At a minimum, evolutionary theory requires a certain substantive interpretation of divine revelation.  This does not mean that the case should have come out differently, but it does make me wary of an effort to erase by judicial fiat a tension that is very real.  Imagine if the Court in Dale v. Boy Scouts had written, "The Boy Scouts falsely assume that allowing openly homosexual leaders is antithetical to their objective of developing morally straight young men."  Now I agree that such a statement is accurate, but it strikes me as a contested extralegal normative claim that is no business of the judiciary to be making.  To probe this area more deeply, be sure to read Rick's thoughtful article, Assimilation, Tolerance, and the State's Interest in the Development of Religious Doctrine. 

Rob

God so loved the world

When all the gifts have been opened and the holiday feast consumed, when all the relatives and friends have gone home and the day has come to an end, this startling reality remains:

God so loves us that not only were we created in God's image, but God became human, like us in all things save sin.   The theologian Michael Himes once observed that "the great mystery hidden from all generations and revealed in the Incarnation is God's secret ambition.  From all eternity God has wanted to be exactly like you and me.  This is the ultimate statement of the goodness of being human, the rightness of humanity.  The immense dignity of the human person is at the heart of the Christian tradition because it flows directly from the doctrine of the Incarnation itself.  Indeed, the Incarnation is the highest compliment ever paid to being human."

Blessings to all on this Christmas night.

Gloria in Profundis

There has fallen on earth for a token
A god too great for the sky.
He has burst out of all things and broken
The bounds of eternity:
Into time and the terminal land
He has strayed like a thief or a lover,
For the wine of the world brims over,
Its splendour is split on the sand.

Who is proud when the heavens are humble,
Who mounts if the mountains fall,
If the fixed stars topple and tumble
And a deluge of love drowns all--
Who rears up his head for a crown,
Who holds up his will for a warrant,
Who strives with the starry torrent,
When all that is good goes down?

For in dread of such falling and failing
The fallen angels fell
Inverted in insolence, scaling
The hanging mountain of hell:
But unmeasured of plummet and rod
Too deep for their sight to scan,
Outrushing the fall of man
Is the height of the fall of God.

Glory to God in the Lowest
The spout of the stars in spate-
Where thunderbolt thinks to be slowest
And the lightning fears to be late:
As men dive for sunken gem
Pursuing, we hunt and hound it,
The fallen star has found it
In the cavern of Bethlehem.

G.K. Chesterton

(thanks to Holy Whapping).

Christmas and the Manger

Merry Christmas! 

It seems to me that there are two templates for living life: one dominated by power and control, the other by surrender, which comes with faith, hope, and love.  Without hope, without faith, without love - without purpose and direction - life is reduced to an attempt to exercise power over whatever little (or big) slice of life we can control. 

For centuries, God has proposed an alternative path, a path that will lead to true freedom and happiness.  It is the path of surrender to God and His will.  Throughout history, God has worked through the weak and the marginalized to show us this way, choosing David, the youngest in his family, to be king; choosing Mary, an unwed teenager, to bear His Son; choosing Israel as His people, etc.  On this Holy Night, God drives home this point by becoming (in the form of the second person of the Trinity) a completely vulnerable and dependent baby.  His first dwelling - a cave.

Peace on Earth, Good Will to All,

Michael S.

Christmas and the Manger

Merry Christmas! 

It seems to me that there are two templates for living life: one dominated by power and control, the other by surrender, which comes with faith, hope, and love.  Without hope, without faith, without love - without purpose and direction - life is reduced to an attempt to exercise power over whatever little (or big) slice of life we can control. 

For centuries, God has proposed an alternative path, a path that will lead to true freedom and happiness.  It is the path of surrender to God and His will.  Throughout history, God has worked through the weak and the marginalized to show us this way, choosing David, the youngest in his family, to be king; choosing Mary, an unwed teenager, to bear His Son; choosing Israel as His people, etc.  On this Holy Night, God drives home this point by becoming (in the form of the second person of the Trinity) a completely vulnerable and dependent baby.  His first dwelling - a cave.

Peace on Earth, Good Will to All,

Michael S.

Gary Becker and Richard Posner on Deterrence

I read the Posner & Becker postings on capital punishment and deterrence (to which Rick called our attention this morning, here) shortly after reading the Donohue-Wolfers paper (about which I posted this morning, here) that will soon appear in the Stanford Law Review.  It seems clear that Becker and Posner posted before reading the Donohue-Wolfers paper.  It will be interesting to see what they say after they've read the paper.  The Donohue-Wolfers paper mounts a powerful econometric argument that there is no empirical basis for "believing" (as Becker says he does) that the capital punishment has a deterrent effect.  (In the same issue of the Stanford Law Review, Carol Steiker of Harvard argues a "moral" case--as distinct from Donohue-Wolfers's '"economic" case--against capital punishment.  For Steiker's paper, click here.)
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Becker and Posner on Capital Punishment

Richard Posner and Gary Becker have posted thoughts --occasioned by the recent execution of Tookie Williams -- at their blog on the "Economics of Capital Punishment."  Becker notes, among other things:

I will concentrate my comments on deterrence, which is really the crucial issue in the acrimonious debate over capital punishment.  I support the use of capital punishment for persons convicted of murder because, and only because, I believe it deters murders. If I did not believe that, I would be opposed because revenge and the other possible motives that are mentioned and discussed by Posner, should not be a basis for public policy.

Another important religious-institutions case

Professor Friedman over at the (excellent) Religion Clause blog reports on a lawsuit, filed recently in California, raising "the issue of whether a religious school can avoid the anti-discrimination provisions of California's Unruh Civil Rights Act by invoking the school's right to freedom of religion and association."  Apparently, Cal Lutheran High "expelled two female students who were suspected of having a lesbian relationship with each other.  In a letter to the students' parents, the school said that the 'bond of intimacy' that exists between the two girls is 'unchristian'. The students' attorney . . . argues that the school is a 'business establishment' under the anti-discrimination law."

Democrats for Life breakfast

This event -- the "Annual Pre-March for Life Breakfast" of Democrats for Life of America -- might be of interest to MOJ readers who will be in Washington next month for the March for Life.  The featured speaker is Dr. Alveda King.

More from Cardinal Schonborn on Darwinism

Several of us blogged this summer about Cardinal Schonborn's New York Times op-ed on "neo-Darwinism," "Finding Design in Nature."  The Cardinal revisits the matter, clarifies his views, and responds to his critics in this (timely, in light of the Dover case!) First Things essay.  Here are the concluding paragraphs:

Some may object that my original small essay in the New York Times was misleading because it was too easily misunderstood as an argument about the details of science. As a matter of fact, I expected some initial misunderstanding. Even had it been possible to state in a thousand words a highly qualified and nuanced statement about the relations among modern science, philosophy, and theology, the essay would likely have been dismissed as “mere philosophy,” with no standing to challenge the hegemony of scientism. It was crucially important to communicate a claim about design in nature that was in no way inferior to a “scientific” (in the modern sense) argument. Indeed, my argument was superior to a “scientific” argument since it was based on more certain and enduring truths and principles.

The modern world needs badly to hear this message. What frequently passes for modern science—with its heavy accretion of materialism and positivism—is simply wrong about nature in fundamental ways. Modern science is often, in the words of my essay, “ideology, not science.” The problems caused by positivism are especially acute in the broad anti-teleological implications drawn from Darwin’s theory of evolution, which has become (in the phrase of Pope Benedict XVI, writing some years ago) the new “first philosophy” of the modern world, a total and foundational description of reality that goes far beyond a proper grounding in the descriptive and reductive science on which it is based. My essay was designed to awaken Catholics from their dogmatic slumber about positivism in general and evolutionism in particular. It appears to have worked.

Senate passes umbilical-cord-blood bill

This is good news:

The Senate on Friday passed legislation to promote collection and expand therapeutic use of umbilical cord blood, which can be used to treat such diseases as leukemia.

The legislation involves "adult stem cells" drawn from umbilical cords of newborn babies or the placenta.

It is noncontroversial -- unlike legislation that would allow federally funded research of embryonic stem cells derived from leftover embryos at fertility centers.

This news, though, is a bit more troubling (to me):

Some lawmakers who back both bills had been reluctant to approve the cord blood bill without the embryonic stem cell bill but decided on Friday to let the less controversial bill go through.

It is hard for me to see why lawmakers whose support for public funding of embryonic stem-cell research is motivated by concern for those with serious diseases would even consider holding up research that presents fewer moral problems.

Noonan on John Paul the Great

Last week, the New York Times excerpted a chapter from Peggy Noonan's forthcoming book, "John Paul the Great."  Very moving.

THE DEATH PENALTY AND DETERRENCE

A profoundly important issue for those of us who contribute to and/or read this blog is the (im)morality of capital punishment.   One cannot fully address that issue without attending to the question whether capital punishment has a deterrent effect.   The following paper, recently posted on SSRN, addresses just that question.

Uses and Abuses of Empirical Evidence in the Death Penalty Debate

JOHN J. DONOHUE III Yale Law School; National Bureau of Economic Research (NBER)
JUSTIN WOLFERS University of Pennsylvania - Business & Public Policy Department ; National Bureau of Economic Research (NBER) ; Institute for the Study of Labor (IZA) ; Centre for Economic Policy Research (CEPR) ; Federal Reserve Bank of San Francisco

Stanford Law Review, Vol. 58, December 2005

Abstract:

Does the death penalty save lives? A surge of recent interest in this question has yielded a series of papers that purport to show robust and precise estimates of a substantial deterrent effect of capital punishment. We assess the various approaches that have been used in this literature, testing the robustness of these inferences. Specifically, we start by assessing the time series evidence, comparing the history of executions and homicides in the United States and Canada, and within the United States, between executing and non-executing states. We analyze the effects of the judicial experiments provided by the 1972 Furman and 1976 Gregg decisions and assess the relationship between execution and homicide rates in state panel data since 1934. We then revisit the existing instrumental variables approaches and assess two recent state-specific execution moratoria. In each case, we find that previous inferences of large deterrent effects based upon specific samples, functional forms, control variables, comparison groups, or IV strategies are extremely fragile and that even small changes in specifications yield dramatically different results. The fundamental difficulty facing the econometrician is that the death penalty - at least as it has been implemented in the United States - is applied so rarely that the number of homicides that it can plausibly have caused or deterred cannot be reliably disentangled from the large year-to-year changes in the homicide rate caused by other factors. As such, short samples and particular specifications may yield large but spurious correlations. We conclude that existing estimates appear to reflect a small and unrepresentative sample of the estimates that arise from alternative approaches. Sampling from the broader universe of plausible approaches suggests not just reasonable doubt about whether there is any deterrent effect of the death penalty, but profound uncertainty.

To download the paper, click here.
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Kaveny on Constitutional Interpretation

Thanks to Michael for linking to Cathy Kaveny's column in the current issue of Commonweal ("Letter v. Spirit:  Why the Constitution Needs Interpreting").

Kaveny is right, of course, that "[g]ood judges do far more than apply the law; they also interpret it" and that "[t]he real question is how" -- not whether -- "a justice will approach the task of constitutional interpretation."  Still, her criticism seems to me directed at a straw man:  No one -- not George Bush, not John Roberts -- denies that good judges "interpret" law.  What's more, President Bush's "mantra" that he wants judges who will not "legislate from the bench" is quite consistent with Kaveny's observation.  To want a judge who will not "legislate" is not to demand a judge who refuses to "interpret"; it is to want a judge who will interpret the Constitution well -- that is, in a way that is democratically legitimate and that is consistent with the text, history, and structure of that document.

Kaveny continues:

We have to ask how we should make sense of the “basic law” of our country today, which faces responsibilities and challenges the Founding Fathers could never have imagined. An approach rigidly focused on the explicit provisions of the text and the intention of the framers is both theoretically and practically inadequate.

As I see it, the primary challenge we face -- one that the Founders could and did imagine -- remains the challenge of common-good-achieving (or, at least, common-good-approaching) self-government under and through a Constitution.  That many of the difficult moral and policy questions presented today were not (and probably could not have been) contemplated even by the most engaged minds of the 18th century can be conceded by those who believe that the Constitution was (and is) more about structuring government and allocating decision-making authority than it is about providing -- or authorizing federal judges to provide -- answers on the merits to difficult new moral questions.  (This is not to say, of course, that "judging" never involves answering difficult moral questions.) 

Yes, "[a]n approach rigidly focused on the explicit provisions of the text and the intention of the framers is both theoretically and practically inadequate", but "rigid[ity]" usually is.  As I see it, though, the question is whether a different approach -- one that would authorize and encourage judicial invalidation of democratically crafted policy choices on the basis of judges' "sense" of our basic law -- but that is unmoored from the "explicit provisions of the text" -- the meaning of which is reasonably tethered to the text's original public meaning (not the "intention of the framers") -- is legitimate or desirable.

Kaveny continues:

Does adopting this general approach mean you can’t criticize Roe? Absolutely not. But it means that you criticize Roe not because it cast its interpretive net too widely, but because it did not cast its net widely enough. . . .  [I]n holding that the unborn are not legal “persons,” the Court failed to consider the dangers to democracy of separating “personhood” from humanity-a lesson that the holocausts of the twentieth century drove home to us again and again.

The Court did indeed fail morally in this regard.  Still, it remains appropriate and important to criticize the Court not only for this failure, but also for what I think remains the Roe Court's striking legal error:  It was simply not the case that the Constitution itself, properly understood, (effectively) entirely disabled state legislatures from regulating abortions or that it authorized federal judges to invalidate all state laws that did regulate abortion.  The Court's "sense" of our basic law -- and its translation of that "sense," in a striking act of "raw judicial power," into a warrant to remove the moral questions about abortion from the political arena -- was misguided.  True, the Court overlooked "the dangers to democracy of separating 'personhood' from humanity"; it also just got the law wrong -- it misunderstood and misinterpreted the relevant text -- and acted on that error in a way that is also "danger[ous] to democracy."

Two items of interest ...

MOJ-readers may be interested in these two items from the December 16th issue of COMMONWEAL. The first is by Cathleen Kaveny, Professor of Law and Professor of Theology at Notre Dame.  The second is an editorial.

Letter vs. Spirit
Why the Constitution Needs Interpreting
Cathleen Kaveny

When discussing Supreme Court nominees, President George W. Bush has long repeated the mantra: he wants judges who “will strictly apply the Constitution and laws, not legislate from the bench.” Yet Bush’s mantra sets up a false dichotomy. Good judges do far more than apply the law; they also interpret it, that is, they give a specific meaning to a general legal term or phrase in the context of deciding a case. In so doing, they’re not “legislating from the bench”-they’re simply doing their job as judges. The real question isn’t whether a Supreme Court justice will interpret the Constitution; it is impossible to avoid doing so. The real question is how a justice will approach the task of constitutional interpretation.

For many people, the right approach is defined solely in terms of the outcome. If the main focus is getting rid of Roe v. Wade, one might argue as follows: In interpreting the Constitution, a justice should be bound by the text of the document and the intentions of the text’s framers. The Constitution does not mention, or explicitly protect, a right to privacy, let alone a right to abortion. Furthermore, the framers of the Constitution, and of the relevant constitutional amendments, certainly did not mean to legalize abortion. In fact, in nineteenth-century America, the practice of abortion violated the statutory or the common law of most states. Consequently, in articulating a constitutional right to privacy which includes a right to abortion, the Roe majority was engaged in an act of “raw judicial power.”

If you only care about prolife issues, then this approach to constitutional interpretation works just fine. If you think other issues are important too, you immediately run into difficulties. Consider racial segregation in public schools. Is it unconstitutional? The key text is the Fourteenth Amendment to the Constitution, which provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” Bush’s mantra notwithstanding, we can’t simply “apply” the law. Interpretation is required. What counts as “equal protection”?

In 1896, in Plessy v. Ferguson, the Supreme Court held that “separate but equal” facilities, especially in the school system, do not run afoul of the Constitution. The argument, like the anti-Roe argument above, was based on the text of the document and the intent of the framers. According to the Plessy majority: “The object of the [Fourteenth] Amendment was undoubtedly to enforce the absolute equality of the two races before the law, but in the nature of things it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political, equality, or a commingling of the two races upon terms unsatisfactory to either. Laws permitting, and even requiring, their separation in places where they are likely to be brought into contact do not necessarily imply the inferiority of either race to the other, and have been generally, if not universally, recognized as within the competency of the state legislatures in the exercise of their police power.” Plessy was the law of the land for nearly fifty years. But in Brown v. Board of Education (1954), Chief Justice Earl Warren wrote that “in the field of public education the doctrine of ‘separate but equal’ has no place.”

What was the basis of this holding? Not the text of the Constitution, which says nothing about segregation. Not the intent of those who adopted the Fourteenth Amendment, whose views Warren maintains were at best “inconclusive.” Some wanted only to end slavery, others wanted to abolish every difference based on race. In any case, Warren contends, their intentions are not decisive: “In approaching this problem, we cannot turn the clock back to 1868 when the Amendment was adopted, or even to 1896 when Plessy v. Ferguson was written. We must consider public education in the light of its full development and its present place in American life throughout the nation.” Key factors considered by the Brown Court were the increasing role that education plays in a successful life, and the demonstrated inferiority of racially segregated schools. But the most important factor was the moral insight that racial segregation in public schools could not be distinguished from a poisonous racism that cannot but infect the hearts and minds of schoolchildren, particularly black schoolchildren. “Separate educational facilities,” wrote Warren, “are inherently unequal.”

It is a mistake to build a theory of constitutional interpretation around just one case, especially a case as controversial as Roe. We have to ask how we should make sense of the “basic law” of our country today, which faces responsibilities and challenges the Founding Fathers could never have imagined. An approach rigidly focused on the explicit provisions of the text and the intention of the framers is both theoretically and practically inadequate. The general approach of the Court in Brown, which assesses basic constitutional values in light of current political and social realities, seems better able to deal with the challenges of the twenty-first century, which may well include questions such as whether a highly intelligent human/animal hybrid counts as a “person” under the Constitution. Does adopting this general approach mean you can’t criticize Roe? Absolutely not. But it means that you criticize Roe not because it cast its interpretive net too widely, but because it did not cast its net widely enough. Roe rightly took into account new social insights about the full equality of women and the special burdens women face in carrying unwanted pregnancies to term. But in holding that the unborn are not legal “persons,” the Court failed to consider the dangers to democracy of separating “personhood” from humanity-a lesson that the holocausts of the twentieth century drove home to us again and again.
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EDITORIAL
Instruction from Rome

Writing about the Vatican takeover of the International Commission on English in the Liturgy (ICEL) from bishops’ conferences (“Lost in Translation,” December 2), John Wilkins offered the rule of thumb he used when editor of the Tablet of London. “If the curial congregations became concerned about an issue, it should always be assumed that they had good reason,” Wilkins wrote. “But the methods they used and their answers could be wrong.”

That is a rule worth keeping in mind in the wake of the Congregatio