Mirror of Justice

Income Inequality, Revisited

I've been on the road for the better part of the last three weeks.  I don't think anyone at MOJ has yet blogged on this:

New York Times
March 29, 2007

Income Gap Is Widening, Data Shows

By DAVID CAY JOHNSTON

Income inequality grew significantly in 2005, with the top 1 percent of Americans — those with incomes that year of more than $348,000 — receiving their largest share of national income since 1928, analysis of newly released tax data shows.

The top 10 percent, roughly those earning more than $100,000, also reached a level of income share not seen since before the Depression.

While total reported income in the United States increased almost 9 percent in 2005, the most recent year for which such data is available, average incomes for those in the bottom 90 percent dipped slightly compared with the year before, dropping $172, or 0.6 percent.

The gains went largely to the top 1 percent, whose incomes rose to an average of more than $1.1 million each, an increase of more than $139,000, or about 14 percent.

The new data also shows that the top 300,000 Americans collectively enjoyed almost as much income as the bottom 150 million Americans. Per person, the top group received 440 times as much as the average person in the bottom half earned, nearly doubling the gap from 1980.

Prof. Emmanuel Saez, the University of California,  Berkeley, economist who analyzed the Internal Revenue Service data with Prof. Thomas Piketty of the Paris School of Economics, said such growing disparities were significant in terms of social and political stability.

“If the economy is growing but only a few are enjoying the benefits, it goes to our sense of fairness,” Professor Saez said. “It can have important political consequences.”

[To read the whole article, click here.]

Benedict, CST, Labor and the Market

The Pope recently made the statements about labor excerpted below in this clip from ZENIT. MOJ readers may find them relevant to our ongoing discussion of CST and the market and the tensions between CST and economic liberalism. Law profs and lawyers will also recognizae their obvious implications for lawyers struggling between the demands of practice and the Catholic sense of time, the purpose of labor and human flourishing, as Amy Uelmen, Cathy Kaveny and others have explored so eloquently.

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VATICAN DOSSIER

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Pope Calls for Revaluing Human Side of Work
Sends Message to Young Professionals in Forum

VATICAN CITY, MARCH 30, 2007 (Zenit.org).- In a message sent to young professionals gathered to analyze the world of labor, Benedict XVI appeals for a revived appreciation of the human dimension of work.

The Pope's appeal was sent to participants in the 9th International Youth Forum, organized by the Pontifical Council for the Laity, on the theme "Witnesses of Christ in the Labor World" being held in Rome through Sunday.

Three hundred 20- to 35-year-olds from about 100 nations are participating in this encounter.

The Holy Father points out in his message: "The process of globalization going on in the world has brought on a need for mobility, which obliges many young people to emigrate and live far away from their birthplace and from their families.

"This generates a disquieting sense of insecurity, with indubitable repercussions on the ability not only to imagine and adopt a plan for the future, but also to concretely commit oneself to marriage and to the formation of a family."

Dignity

"In a context of economic liberalism conditioned by market pressure, by competence and competitiveness," the Pontiff underlined "the need to value the human dimension of labor and to guarantee the dignity of the human person."

"The final reference point of any human activity can be only the individual, created in the image and likeness of God," he added. "Work is part of God's project for the human being" and implies "a participation in his creative and redemptive work."

Benedict XVI continued: "Therefore, every human activity should be a motive and a place of growth for the individual and for society, a development of personal 'talents' that must be valued, a service oriented toward the common good, with a spirit of justice and solidarity.

"For the faithful, moreover, the ultimate finality of labor is the building up of the Kingdom of God."

To face these "complex issues," the Pope proposed Catholic social doctrine as a reference point for the young professionals.

"Today, more than ever, it is urgent and necessary to proclaim the 'Gospel of work,' to live as Christians in the world of labor and to become apostles among workers," the Holy Father asserted. "But to complete this mission one must stay united to Christ with prayer and an intense sacramental life, and with this objective, to value Sunday, the day dedicated to the Lord."

-- Mark

Catholic Legal Theory and Final Things (end times)

Since its inception, the Mirror of Justice has examined in varying degrees many legal issues through the lens of Catholic Legal Theory (CLT). If CLT were an ambiguous notion several years ago, MOJ postings have made strides in clarifying what it is, is not, and might be. Through the course of presentations and debates, nuanced examinations on questions involving corporate governance, law and economics, conscience, religious liberty, capital punishment, slavery, the common good, solidarity, subsidiarity, and justice (to mention but a few topics addressed on this site) have been examined through the perspectives of contributors who, in one form or another, claim participation in the CLT project.

Today, as we approach the beginning of Holy Week, I would like to raise something that may have previously escaped our corporate and individual studies: the relation between CLT and end things or end times—eschatology to use the ecclesiastical and theological term. In the context of our preparation for Easter and the powerful reminder that Christ lived, died, and was resurrected in God’s plan for human salvation, does the law, does CLT have a role in all this? Well, I suppose for many lawyers, judges, law students, law makers, law enforcers, and the citizenry at large, my question may have little or no meaning. But for those who participate in CLT, should it not?

It would seem that any academic project having a foundation in the Catholic faith would at some point be concerned about human destiny, individual and communal. As the Eighth Psalm reminds us, “what is man that you are mindful of him, and the son of man that you care for him?” From a Catholic theological perspective, this text from the Old Testament about human nature leads us to the view that each person’s destiny is tied to union with God forever as is emphasized by Saint John’s Gospel—“For God so loved the world that he gave his only-begotten Son, that whoever believes in him should not perish but have eternal life. For God sent the Son into the world, not to condemn the world, but that the world might be saved through him.” As I ponder the meaning of all this and the questions dealing with end things and times, I would like to suggest that human law and certainly human law as understood, studied, explained, and molded by CLT does have a role in God’s plan for human destiny.

I begin with a presupposition that CLT views the law not as an end in itself but as a means to promoting something else that deals with human nature and our relation to God and to one another. If this premise has merit, then should we not think that the telos of the law is more than just good governance by the authority of the rule of law that protects people and makes them more responsible to one another? I tentatively submit that the role of the law from a CLT perspective might have something to do with maximizing—in the context of human authority and contribution—God’s promise of salvation and union with Him insofar as human beings can make a contribution to God’s plan. Let me take by way of illustration the question of capital punishment. While we may agree that a convicted person has unquestionably committed such a grievous crime to which a death penalty may apply according to the civil law, does not or should not CLT argue that some other punishment (which still protects society from the further mischief of the convicted) not involving death is more appropriate so that the justly convicted may be given the maximum opportunity to offer contrition and seek God’s forgiveness before his or her end time is met? Would not legal regimes dealing with the “right to life” (abortion, health care, nutrition, etc.) as understood from a CLT perspective be inclined to ensure that everyone has the maximum opportunity to live and lead a productive life so that he or she again has the highest opportunity to meet God properly prepared when his or her end time approaches?

The degree to which consideration about the end times and end things enters the discussion of any legal issue will vary, I think. But Holy Week might just give us the opportunity to consider this matter that I have raised. In the meantime, may the contributors and readers of MOJ have a blessed Holy Week and celebrate a joyous Easter!   RJA sj

Subsidiarity's ambiguities

I appreciate Rob's recent queries about the cash value of my understanding of the principle of subsidiarity.  Before I can turn to Rob's three points, there's a threshold issue.  My paper is a deliberate attempt to apply the principle as understood in the Church's social doctrine to a concrete social problem of contemporary America.  Where would the Church's principle get us in terms of allowing poor parents to give their children the education they (and the Church) judge that they should have.  I may well be wrong in my understanding of the magisterium's teaching about the principle (indeed, on reason to steer clear of subsidiarity in trying to advance the discussion in Catholic terms is that the term has been used in too many senses, including by the popes), but there are texts to consult, parse, interpret, and, of course, judge for whether or not they articulate a true principle.  I think I do affirm as true the principle as articulated in the magisterial teachings, and I would add that Rob's version of the principle seems to me different from the magisterium's.  For purposes of the present discussion, however, let's leave behind what the magisterium has said about subsidiarity.  Let's just ask what people mean by subsidiarity and whether those propositions are true.

If we're not talking about the Church's understanding of the principle, then what are our sources for saying what the principle is/means.  Common usage?  I would agree with Rob that in common usage, the principle is (roughly) that ruling authority should devolve to the lowest level at which it can be exercised competently.  But is this true?  Is it true that power should devolve to the lowest level at which it can be exercised competently?  Rob seems exclusively to be asking whether the principle is "helpful" or useful.  I'm asking whether it is true.  Of course, I do believe that the true is both useful and helpful, in a very deep sense, but there's no guarantee of its convenience or utility.

My answer to my last question is no.  That is, there does not exist a true moral principle that calls for the devolution of power to the lowest level at which it can be exercised competently. 

Why?  As I see things -- that is, I affirm as true that -- we confront a world in which ruling authority is always already distributed, at least in potency. Subsidiarity, furthermore, is a derivative principle that describes the relations that do or should obtain among those ruling authorities.  The common conception of subsidiarity as calling for devolution makes the assumption that ruling authority starts at the top (in "the state") and should then be made to devolve according to a criterion of competence/efficiency.  The conception of subsidiarity I am affirming as true proceeds from a prior judgment that authorities are plural and primordial to begin with, never the sole possession of the sovereign state, then it then to parcel out and downward.  From the prior judgment, about ruling authorites that are already out there (at least in potency), I derive the the principle of subsidiarity that provides a norm for relations among those authorities.

But it's that prior judgment that is the stumbling block for most people, I suspect.  So, to take Rob's third point, a sufficient reason that the state shouldn't force the Church, as a condition of assisting in any adoptions at all, to assist with adoptions to same-sex couple, is that to do so would be to trench on the Church's ruling authority that the Church posssesses not as a concession of (or conditional devolution from) the state.

The question is always whether there is, at least in potency, genuine ruling authority.  When there is, subsidiarity kicks in, if you will.  So, what about Rob's second point, concerning "local empowerment?"  The question I would ask about a local group is whether it is posessed, at least in potency, of genuine ruling authority.  I would reach different judgments about trade unions that seek just wages and well-organized lnych mobs.  I'm sure job would too, but my point is that "local empowerment" is not a freestanding norm.   

On the principle I affirm as true, authority derives, in part, from conformity with the true and the good.  So, finally, with respect to Rob's first point, I'm not making an argument in favor of "imposing truth claims."  Communities that possess genuine authority must in fact co-exist with other communities, according to judgments of "prudence," but not every group we have to co-exist with is possessed of genuine authority.  The world stage is ample evidence of this.  Power is different from authority.

I suspect Rob and I disagree, at least in part, about the contents of the ontology that precedes the possible operation of the principle fo subsidiarity.  Some of what I affirm as the contents of that ontology I reach based on the contents of Christian revelation, some on basis of natural morality.  Which leads me back to one issue in Rob's third point.  I don't believe that the Church's affirmation of a right to religious liberty contains a right to conduct that violates natural morality.   It may be prudent to tolerate such conduct, and of course -- and this is the point -- we argue argue even among friends about the contents of natural morality, but this much at least, I think, is true:  the Church teaches that there is a naturally accessible morality that is binding on all rational humans. 

Perhaps it's at the level of this last claim that our disagreement begins.  On the position I'm taking, it is because we -- individuals and socieities have naturally- and supernaturally-given functions to perform that we can have genuine authority, and it is from the marvelous plurality of such authorities -- from schools, families, Church, unions, etc. -- that the principle of subsidiarity is derivative.  Rob worries (point two) that if people agree about morality and act accordingly, subsidiarity will go out of business.  On my position, a world of morally upright actors would contain authorities beyond numbering, and subsidiarity would faciliate their interaction.   

There's much more to say about this (especially about this notion of "functions"),  and I'm conscious of not having done justice to Rob's points.  It's amazing how much two people who both want to use the word subsidiarity to benign purposes can disgree about.  I know I agree with Rob that very often the "lowest level" will in fact be where ruling power should be located -- but we get there by very different routes, and my route depends an an ontology of authority that Rob probably won't find acceptable.  Again, there's a lot more to be said about this, some of which is in long text of my "Harmonizing Plural Socieities" paper.  (Btw, thanks, Rob, for your respectful attention to the paper).  On authority specifically, there's more -- from a different angle, however -- in my "Locating Authority in Law" paper, which is posted on the right here.

    

religious liberty and truth

Rob asked about the relationship between religious liberty and truth and wondered why truth doesn't limit the operation of religious liberty. I think Dignitatis Humanae does make it clear that religious liberty must be understood in light of and is limited by the objective moral law. According to Father Brian Harrison, Dignitatis Humanae's reference to the objective moral law was inserted after an intervention by then-Archbishop Karol Wojtyla. This linkage between freedom and truth was a key theme for Pope John Paul II throughout his pontificate, in particular in Vertitatis Splendor.

The Catechism (at 2108-2109) makes this point in this way: "The right to religious liberty is neither a moral license to adhere to error, nor a supposed right to error, but rather a natural right of the human person to civil liberty, i.e., immunity, within just limits, from external constraint in religious matters by political authorities. This natural right ought to be acknowledged in the juridical order of society in such a way that it constitutes a civil right. The right to religious liberty can of itself be neither unlimited nor limited only by a 'public order' conceived in a positivist or naturalist manner. The 'due limits' which are inherent in it must be determined for each social situation by political prudence, according to the requirements of the common good, and ratified by the civil authority in accordance with 'legal principles which are in conformity with the objective moral order.'"

Dignitatis Humanae did not endorse Casey-style reasoning about individual moral autonomy.

Richard M.      

"Law and the Catholic Social Tradition" update

This quarter, I am teaching a course called "Law and the Catholic Social Tradition."  (I posted the syllabus here, a few days ago.)  What I thought would be a small seminar has grown quite a bit; it looks like we'll have about 30 in the "seminar." 

On Tuesday, Chicago's archbishop, Cardinal George, was generous enough to join us for dinner at the Law School, and to share his thoughts on the Compendium generally, and the "CST and the law thing" more generally.  On Wednesday, we had our first meeting, and I am excited and optimistic about the class.  The students are a very diverse and, it appears, engaged group.  I suspect that I will be sharing some of their thoughts with MOJ readers in the weeks to come, so stay tuned. . . .

Brennan on Subsidiarity

I recommend reading Patrick Brennan's article in the current Journal of Catholic Legal Studies titled Harmonizing Plural Societies.  Of particular interest to me is his criticism of my past explications of subsidiarity.  I have written that:

If we claim that subsidiarity renders localization in a particular context valid only to the extent that the local body’s approach contributes to the common good, as defined by the truth claims of the moral anthropology [of the Church], we have emptied subsidiarity of its real-world meaning. If localization’s validity is measured against a standard derived from a contested vision of the good, subsidiarity becomes a simple prop, justifying whatever vision of the good happens to hold sway in the political and legal spheres.

Patrick counters that:

As understood in the tradition of Catholic social thought subsidiarity is not a principle that justifies subversion of claims on behalf of universal truths about the good for human and group persons.  Magisterial Catholic social thought affirms plural societies and their respective authorities, and it does this on the ground that each possesses a munus proprium, a share in the divine rule, which, as the ontological principle subsidiarity attests, is irreducibly its own in concert with other genuine societies. . . . Any genuine authority is a share in divine providence, and the legitimacy of its exercise depends upon its being ordered to the good of individuals, group persons, and the common good.

I'm in no position to quibble with Patrick's reading of the Magisterium, but his criticism prompts one comment and two questions.

First, I don't read subsidiarity to justify the subversion of any truth claims; rather, I read subsidiarity to justify a degree of hesitation before imposing truth claims on unwilling subcommunities.  Maybe this is a function of prudence, not subsidiarity, but I guess I have a hard time separating subsidiarity in operation from judgments grounded in prudence.

Second, if subsidiarity only contemplates the devolution of authority to the extent that the authority is exercised in keeping with the Church's understanding of the common good, of what practical relevance is subsidiarity?  To me, subsidiarity is helpful because it calls for local empowerment, even if the local bodies refuse to abide by the majority's norms.  Catholic social thought aims to bring the majority's norms in line with the moral anthropology, but if we succeed in that endeavor, then is subsidiarity no longer a pressing concern?  In other words, we'll invoke subsidiarity to justify excusing ourselves from conforming to unjust societal norms; but once we render the societal norms just, subsidiarity is no longer a justification for subcommunities who disagree with our norms?

Third, if the Second Vatican Council was right on the question of religious liberty -- not just as a matter of prudence, but as a substantive vision of the good -- why shouldn't the good also encompass the freedom of subcommunities to pursue their own erroneous conceptions of the moral life?  For example, I believe that Massachusetts is wrong, based in large part on the principle of subsidiarity, to force Catholic Charities to provide adoption services to same-sex couples.  If the policy was reversed and Catholic Charities was allowed once again to discriminate, should the Church turn around and seek to ban a secular non-state agency from including same-sex couples in their services?  Assume, for the sake of the argument, that the only evidence of "harm" resulting from same-sex adoption is that children will grow up less likely to believe that homosexuality is immoral.  In other words, assume that there is no evidence that the children's well-being is negatively impacted other than well-being as defined in the Church's own (contested) moral claims.  Just as religious liberty facilitates "harm" -- it allows children to be raised without any exposure to the Gospel, for example -- why shouldn't subsidiarity facilitate "harm" -- allowing subcommunities to pursue lives in defiance of the Church's moral teaching?  To make a rambling inquiry (hopefully) more concise: why does Truth limit subsidiarity's operation, but not religious liberty's operation? 

Dobson Being Dobson

When James Dobson talks, it makes me think that maybe John Rawls' "public reason" requirement is not such a bad idea.  Dobson is skeptical of Fred Thompson's possible presidential run because:

"Everyone knows he's conservative and has come out strongly for the things that the pro-family movement stands for," Dobson said of Thompson. "[But] I don't think he's a Christian; at least that's my impression," Dobson added, saying that such an impression would make it difficult for Thompson to connect with the Republican Party's conservative Christian base and win the GOP nomination.

Mark Corallo, a spokesman for Thompson, took issue with Dobson's characterization of the former Tennessee senator. "Thompson is indeed a Christian," he said. "He was baptized into the Church of Christ."

In a follow-up phone conversation, Focus on the Family spokesman Gary Schneeberger stood by Dobson's claim. He said that, while Dobson didn't believe Thompson to be a member of a non-Christian faith, Dobson nevertheless "has never known Thompson to be a committed Christian—someone who talks openly about his faith."  "We use that word—Christian—to refer to people who are evangelical Christians," Schneeberger added.

More on Conscience

The Los Angeles Times provides an overview of the recent controversies in Minneapolis over Muslims' claims of conscience in the workplace. 

Blankenhorn v. Carpenter

In the Weekly Standard, David Blankenhorn has an article on same-sex marriage based on his new book, The Future of Marriage.  He argues that:

When it comes to the health of marriage as an institution and the legal status of same-sex unions, there is much to be gained from giving up the search for causation and studying some recurring patterns in the data . . . . It turns out that certain clusters of beliefs about and attitudes toward marriage consistently correlate with certain institutional arrangements. The correlations crop up in a large number of countries and recur in data drawn from different surveys of opinion.

Dale Carpenter responds here and here.  Though Carpenter describes Blankenhorn's book as "deeply wrong," he also calls it "probably the best single book yet written opposing gay marriage."

Can God and Caesar Coexist?

The latest issue of the St. John's Journal of Catholic Legal Studies contains a symposium, entitled Can God and Caesar Coexist?, featuring articles by three leading scholars commenting on Robert Drinan's book of that name, as well as his own introduction to the three pieces, which he completed only shortly before his death.  The journal issue, dedicated to Drinan's memory, can be accessed here.

The creation of an art university

I've blogged here before concerning the wanton closing of my childhood parish.  Sorry to be a bore, but the story isn't mine alone.  Now Amy Welborn is linking to the most recent report about the closing and systematic desecration of St. Brigid, perhaps the most beautiful church in San Francisco and a parish that was, by all reasonable, relevant standards, doing just fine when Archbishop Quinn decided it would be useful for it to come to an end.   http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2007/03/25/MNGRSKRH2E223.DTL

This isn't just the now-usual business of selling everything to pay for the mistakes.  A long time ago, but within clear memory, Archbishop Quinn's administration decided to reorangize the Archdiocese of San Francisco.  Bells that used to ring out joy were ripped down and thrown away.  Why?

One thing the San Francisco Chronicle doesn't report this time -- it did years ago -- concerns how that administration's administration allowed the pastor of the neighboring (rich) parish to the vote to close St. Brigid, the parish that would most benefit from St. Brigid's destruction/suppression (btw,the parish of which he was previously an associate pastor).   Canon Law covers this stuff-- and for good reason. 

Rome, thank God, ALMOST came to the rescue.  One almost has to read the Chronicle -- the current story as well as many in the '90s and since -- to believe how Quinn manoeuvered to end the parish.  Its sale would generate the most money -- as the Chronicle alone revealed, back in the day -- to pay the settlements that, as we see now, loomed.   

Arch. Quinn's reported egalitarian protestations to Rome, about why not to save a "rich" parish when others would go hungry, should be read against the record that reflects -- and unequivocally -- that the parish promised not only to retrofit and support itself, but also to retrofit any parish of the Archbishop's selection.  Etc.  Be sure to add the fact that the Archdiocese harvested nearly one million dollars from closing the parish's savings account.  This is a story that reflects ill on almost all the American clergy involved, so far as I can tell. 

Fr. Cyril O'Sullivan, however, is a hero in the story.  He won't remember me, but I remember much of what he did back when the destruction loomed and then began. (Before and while he was defending the parish against the demolition artists, he was a wonderful minister to those who came to St. Brigid to pray and worship).  Many members of the laity at St. Brigid, including some mentioned in the Chronicle, also deserve great thanks.

St. Brigid church is now an "art university."

 

MOJ, The Forbidden Fruit

I'm in France this month on a visiting professorship -- I'll try to offer something substantive soon, but for right now I can only report that Rob's fears about MOJ's naughty image appear to be coming true.  While on a trip this past weekend, I tried to read the blog from the hotel computer, and the filter program blocked MOJ as a site containing "education sexuelle/notions avancées."  And this in Paris no less!

Tom

Horwitz on religious tests

Professor Paul Horwitz, who is visiting at Notre Dame this semester, is guest-bloging at the Volokh Conspiracy about his recent, excellent article on the Religious Tests clause.  Check it out.

COMMONWEAL Speaks

March 23, 2007 / Volume  CXXXIV, Number 6

EDITORIAL

Disarray

The Editors

Beleaguered is the polite word now most often used to describe the Bush administration. Yet making sense of the administration’s failures requires stronger language. As the events and revelations of the last few weeks remind us, almost nothing this administration does works and almost nothing it says adds up.

What is one to make of the deplorable treatment of wounded and damaged Iraq war veterans at the Walter Reed Army Medical Center? How could an administration that endlessly boasts of its “support for the troops” allow those who have paid the highest price for this unnecessary war to be neglected in this way? Evidently, similar problems pervade the military health-care system. Veterans Administration hospitals, which under the Clinton administration were models of what good government stewardship could accomplish, are now also in disarray. Like everything else associated with the Iraq debacle, the military medical system was simply not equipped to deal with the unintended consequences of the war, namely the tens of thousands of severely traumatized soldiers who will require decades of care. Some generals have been fired, and a bipartisan commission has been established to investigate the scandal, but this should not distract attention from the fact that the buck stops in the White House.

A rare moment of accountability occurred in the conviction of I. Lewis Libby, Vice President Dick Cheney’s former chief of staff, on perjury and obstruction of justice charges. Libby lied to FBI agents and to a grand jury investigating the administration’s efforts to discredit Ambassador Joseph Wilson, a critic of the administration’s unfounded claims about Iraq’s weapons of mass destruction. The legal issues of the case, which initially involved an investigation into the “outing” of Wilson’s wife as a CIA agent, were far from clear, and Wilson himself is no paragon of truthfulness. What is undeniable, though, is that Libby lied about his role in the administration’s feverish effort to smear an opponent of the war.

More evidence of the administration’s cavalier attitude toward the law came to light in the congressional testimony of six U.S. attorneys fired by the Department of Justice. The federal prosecutors complained of Republican political interference with investigations, and of threats of retaliation if they went public with their stories. Later in the same week it was revealed that the FBI has carried out unauthorized surveillance on thousands of U.S. citizens under predictably elastic applications of provisions of the Patriot Act.

If things are going badly at home, not much is going better in Baghdad, where the carnage continues virtually unabated. Holding his first news conference after assuming control of U.S. forces in Iraq, General David Petraeus said the “surge” strategy will require more than the 21,500 troops already committed. It was then learned that President Bush had already dispatched nearly five thousand more troops. Petraeus also strongly hinted that the surge, which was presented to Congress and the nation as a temporary escalation, will be open-ended in duration. In other words, there will be no end to the war in Iraq on Bush’s watch, and therefore no need to face up to any ultimate failure.

Bush’s defenders complain that Democrats have no alternative strategy. On the contrary, several plausible proposals for gradual disengagement are being debated in Congress, all of which recognize, as General Petraeus himself has said, that there must be a political solution to the conflict. As columnist Jonathan Chait writes of Bush’s apologists, “Trust the commander in chief, don’t undermine the troops, withdrawal equals defeat, aren’t arguments to support Bush’s strategy. They’re generic pro-war arguments.” And that is all the administration has ever offered.

The heartwrenching stories from Walter Reed remind us that a very small number of Americans are paying a very high price for this open-ended war. Many soldiers are now being sent back to Iraq for the third time, while others are having their deployments extended. There has been remarkably little protest about this unjust and ruinous policy. If joining the armed services is the job these men and women chose, then they have to live with the consequences of that choice, or so goes the common wisdom. But war is not a “job” in any morally coherent sense. Even if service in the military is voluntary, placing the burden of the nation’s decision to go to war only on those who have chosen to serve is not right. Their choice does not absolve us of our responsibilities to treat them fairly. What was shameful about the abuse of the wounded at Walter Reed was easily understood. What is shameful about sending the same young men and women to fight again and again in Iraq should be too.

Separation of Church and culture

Here's an interesting post, from the "Crunch Con" blog, on the "separation of church and culture":

I heard a good talk last night by Ken Myers, the happy genius of the indispensable Mars Hill Audio Journal household. Our host was Dr. David Naugle, head of the philosophy department at Dallas Baptist University (N.B., for Dallas area readers, Ken's going to be speaking today at DBU at noon, on "Why There Really IS A War Between Science and Religion: C. S. Lewis's Vision of a 'Repentant Science'"; the lecture is free -- follow the link to Dr. Naugle's webpage for details). I've become a big fan of the Mars Hill interviews, and can't encourage thoughtful Christians interested in the intersection of faith and culture strongly enough to subscribe. So it was a treat to hear Ken speak in person. He talked last evening about how from the days of the founders, the American way of thinking about the role of religion in public life was not only to privatize it, but to individualize it. He explained how the inevitable result of this was to make Christian faith peripheral to the substantive questions in public life. Moreover, the principles behind this privatization of religion inevitably lead to the corruption of religion, because it becomes primarily a matter of expressing how individual men feel about God, rather than being an expression of how God feels about individual men, and what He calls us to do.

The upshot is that even among the most religiously enthusiastic Americans, the faith has become so inculturated that it has been turned inside out, and is no longer prophetic, but therapeutic. Ken talked about an interview he did in 2005 with sociologist Christian Smith, who had just written a book on the religious and spiritual lives of American teenagers. What he found was a consistent set of religious beliefs across denominations, and even traditions (i.e., Muslim teenagers told him the same thing). But it wasn't the beliefs of the particular traditions the kids came out of; rather, it was what Smith calls "moralistic therapeutic deism." It's principles, as Ken listed them, were startlingly familiar: God exists, but you really shouldn't get overly involved with Him unless you get into real trouble or something; the point of life is to be happy; it's important to be nice; good people go to heaven, and most everybody is good; et cetera. . . .

Another coup for St. Thomas

It's being reported over at the Volokh Conspiracy that Professor Michael Stokes Paulsen will be leaving the University of Minnesota and moving across town to the University of St. Thomas.  This is, in my view, a fabulous hire, one that -- coupled with the news about our own Susan Stabile and Joel Nichols -- really brings home how successful the St. Thomas experiment has been.  In terms of law-and-religion, it seems clear to me that St. Thomas is now home to one of the strongest groups of scholars in the country.

Many of us are interested in the enterprise of Catholic legal education, even if we teach at non-Catholic institutions.  What lessons does the St. Thomas experience hold out for us, and for other Catholic law schools?

"Pro-life, whole-life"

An interesting profile of Sen. Brownback, from a New Hampshire paper:

U.S. Sen. Sam Brownback introduced himself to state voters Monday as a "full-scale conservative" and made no apologies for his hardline stances against taxes, abortion and gay marriage.

The Kansas Republican, making his first trip to the earliest primary state since announcing his presidential ambitions, told conservative activists at a luncheon he's "pro-life, whole life," saying candidates can't fight for fetus' rights and then abandon them after they are born.

"I believe the child in the womb should be protected, and that we should also protect the person that's in poverty, and the child that's in Darfur, and working with prisoners so they don't have so much recidivism and always back in the system," Brownback said.

CST on the Market, the State and the Law at Villanova

I am emerging from the swamp of the deanery long enough to post this Call for Papers to be presented at the Fifth (mirabile dictu!) Annual Conference on Catholic Social Thought and the Law here at Villanova Law in September 2007. Many MOJ-ers and friends-of-MOJ have presented at or attended these conferences. This year's topic will be one that has engaged several of us on this blog over the years -- what does CST tell us about the relationship of the market, the state and the law? Confirmed speakers include David Hollenbach, who will speak about "Economic Justice for All 20 Years Later," the economist/theologian Daniel Finn, who has recently published "The Moral Ecology of Markets" with Cambridge UP, our own Susan Stabile, and yours truly. But there is plenty of room for other papers and respondent. I hope my co-blogistas and our readers will be kind enough to circulate this call to their colleagues and other interested parties.

VILLANOVA

UNIVERSITY

SCHOOL

OF LAW

JOURNAL OF CATHOLIC SOCIAL THOUGHT

The Fifth Annual Conference on Catholic Social Thought and the Law

Catholic Social Teaching on the Market, the State and the Law

CALL FOR PAPERS

Villanova

University

Conference

Center

Friday, September 21, 2007

The nature and implications of Catholic social teaching on the significance of the market for human dignity, and on the role of the state in the regulation of the market, is one of the most controversial aspects of the social doctrine. Catholic social teaching on these issues can best be described as sui generis and non-assimilable to secular conceptions of “left” or “right,” but both the left and right have claimed that teaching for their own. This has led to fundamentally inconsistent characterizations of Catholic social teaching as either left-communitarian or as supportive of a strong form of economic liberalism. Can both characterizations be correct? Does disagreement over the proper role of the state prevent creation of a coherent theory of how the market contributes to the common good?

Even more troublesome is the argument that the teaching on the market and its relation to the state is so general and abstract, and so deferential to secular/technical knowledge, that virtually all specific questions of economic and regulatory policy should be regarded matters of prudence, and that the social doctrine gives no or little guidance to their resolution. If that is true, then the value of Catholic social teaching in this field is questionable, to say the least. Is such a wholesale deference to prudential judgment consistent with Catholic social teaching’s robust conception of the common good?

These contesting claims about Catholic social teaching have broad implications for Catholic legal theory. Can the social doctrine provide a framework for determining when and how the market should be freed or constrained by law? Can we derive from it a set of normative propositions about the nature and purpose of the corporation that would provide a foundation for the law of corporate governance and social responsibility?  What implications does Catholic social teaching about the market have for the legal structuring of the employment relationship?  These are just a few of the questions that will be considered at the Conference.

The Conference will bring together legal academics, economists, theologians and philosophers. Articles presented at the Conference will be considered for publication in the Journal of Catholic Social Thought, a peer-reviewed, interdisciplinary journal.  Please submit paper proposals or requests for more information to Dean Mark A. Sargent, sargent@law.villanova.edu or Professor Michael Moreland, moreland@law.villanova.edu at Villanova University School of Law.

Information for those wishing to attend the Conference will be published shortly.

Jacoby on anti-Catholicism

Last week Michael P. posted an op-ed by Susan Jacoby arguing that religious believers too often mistake disagreement for discrimination.  Jonathan Watson responds here.  On the Washington Post's website, Jacoby has a post exploring a similar theme, but focused more particularly on the "phony issue" of anti-Catholicism.  An excerpt:

The accusation of anti-Catholic discrimination, like the labeling of all critics of Israel as anti-Semitic, is a cover for what is essentially a dispute between conservatives and liberals (both within and outside the Catholic Church). I wouldn't vote for a Catholic like [Bill] Donohue, but then I wouldn't vote for an atheist, a Jew, a Muslim, a Protestant or (what was it?) a believer in "Tibetan Buddhist deities" who shared Donohue's views.

A Catholic wit, looking back on the certitudes of American Catholicism in the fifties, once remarked that "it was the only THE church." Not any more. And never, thankfully, in America. Catholicism, like every other religion, enjoys no immunity from secular criticism in our nation.

China, Canossa, and Religious Freedom

Shameless self-promotion time:  In today's issue of USA Today, I have this op-ed, "China's lesson on religious freedom," which is about the Holy See's resistance to China's efforts to select Catholic bishops.  Here's a bit:

Although its government likes to claim otherwise, and apparently hopes people won't notice, meaningful religious freedom does not exist in China. Quite the contrary: As the U.S. Commission on International Religious Freedom stated in its report last year, "The Chinese government continues to engage in systematic and egregious violations of freedom of religion or belief."

And so, it was probably more disappointing than surprising when the government-controlled puppet church, the Chinese Patriotic Catholic Association, late last year purported to ordain a new bishop for Roman Catholics in the Xuzhou Diocese, about 400 miles south of Beijing, over the objections of the Holy See.

Why should we care? True, we might sympathize with the millions of Chinese believers whose freedom of conscience is systematically violated, and we might harbor a general unease about China's increasing power, ambition and influence. But putting that aside, is there any reason, really, why Americans should worry much about which of these two bureaucratic adversaries — the Holy See or the People's Republic — picks Chinese bishops? . . .

The struggle for the church's freedom in China reminds us that what the separation of church and state calls for is not a public conversation or social landscape from which God is absent or banished. The point of separation is not to prevent religious believers from addressing political questions or to block laws that reflect moral commitments. Instead, "separation" refers to an institutional arrangement, and a constitutional order, in which religious institutions are free and self-governing — neither above and controlling, or beneath and subordinate to, the state. This freedom limits the state and so safeguards the freedom of all — believers and non-believers alike.

"Straddling Liberalism and Conservatism"

Readers might be interested in this profile in the New York Times of Fr. Benedict Groeschel.  A bit:

The church’s views on issues like abortion and homosexuality put Father Groeschel on the opposite side of the political spectrum from many who support his work for social justice.

“I used to be a liberal, if liberal means concern for the other guy,” Father Groeschel said. “Now I consider myself a conservative-liberal-traditional-radical-confused person.”

His old friend Mrs. O’Keeffe doesn’t see any contradiction.

“If you knew the man all along, you just see a human being developing from one place to another,” she said. “His basic simplicity, intelligence and love of people has never changed. He’s still clothing the poor and feeding the hungry.”

A minor complaint:  Do we have be hear, yet again, about Pope John Paul II's "strict faith"?  Is that even close to being the best, even a fitting, word to describe it?

Failing America’s Faithful

On a recent trip back to Rome from the US, I read Kathleen Kennedy Townsend’s new book entitled Failing America’s Faithful: How Today’s Churches Are Mixing God with Politics and Losing Their Way. While the book provides an interesting read, I must question some of the author’s assertions. While I realize that her work was not intended to be a scholarly examination and presentation of the confluence of law, religion (particularly the Catholic faith), and public life, I was surprised that the author’s bibliography did not contain any Church texts whatsoever. However, authors such as Joan Chittister, Harvey Cox, Mary Daly, E.J. Dionne, Jr., Elisabeth Schüssler Fiorenza, Elizabeth Johnson, and Gary Wills made the cut. Joseph Ratzinger, Eugenio Pacelli, Angelo Roncalli, and Karol Wojtyla amongst others, did not.

One of Kennedy Townsend’s central and inspiring premises is that “Churches could be the place to encourage, nurture, and promote moral action.” However, in her estimation, they fail in this because “faith in America now divides communities.” It struck me that she has made a mistake in this assertion. I do not see faith dividing communities or anything else, but I do see political issues such as abortion, bioethical questions, euthanasia, same-sex marriage—to mention but a few—providing the grist for this divisive mill. She makes a further important claim that “We no longer hear in our churches, or in our homes, the daily reminder that to walk in God’s path is not just to pray or give charity, but also to work for justice for every creature on His earth.” (Her italics) The assertion is all the more startling when one considers the author’s personal record when she held public office—did she extend justice to all of God’s creatures? She equates the mission of the Church—her Church as she often says—with social justice. Little or nothing is said of a deep faith that takes into account God’s truth, sin, redemption, and salvation. Consequently, her prose reads more like a political treatise than it does an account of faith in public life.

On several occasions she says that the Bible is silent on issues such as contraception, abortion, same-sex marriage, and embryonic stem cell research, but the Church preoccupies itself with these public issues. She then critiques Her Church and other denominations for not connecting religious teachings with pressing issues such as “corporate greed, environmental degradation, failing schools, or lack of health care.” These are surely important issues, but I do not remember the Gospels addressing these either; however, she does not mention that these items are also absent from the canonical texts of Sacred Scripture.

Nevertheless, she insists that she wants the Catholic Church to play its part in the world. In this contexts, she contends that the Church must be able to handle the issues of the day, which include contraception, family planning, and the role of the laity and of women in the Church and society. With regard to the role of the laity, the author does not indicate any familiarization with Pius XII’s 1939 encyclical Summi Pontificatus wherein he made some important points about the significant role of the laity. But, it again strikes me that the Church has addressed all these issues that she has raise and many more besides, but it seems that it has not done so in the fashion that the author prefers. Perhaps that is the real bone of her contention.

At another point she makes the interesting claim that “A number of Catholic leaders such as Father Robert Drinan suggested that the Church refrain from taking a political position on abortion on the grounds that all moral issues need not be legislative ones. But the hierarchy in Rome refused that stance.” Her statement begs the question what was the Church to do when, in fact, abortion became both a legislative and judicial matter? Was the Church, its hierarchy, its members to remain silent? Where would justice and the faith be if they did remain silent? But her response to my question is this: “I—and many other Catholics—were faced with a Church whose teachings seemed increasingly out of step with our lives. Our all-wise Church, which had seemed so embracing, so understanding of human sin and weakness, did not seem so wise anymore.” She quickly follows up this critique by stating that “Whenever I begin to despair of the Church’s recent retreat from the fight to create a just society, I remind myself of the moments when [it] lived up to its name, rose above the denominational limits, and spoke out on behalf of justice for all people.” This assertion demonstrates how unfamiliar she is with her Church, its teachings and its actions across the globe. It seems that when the Church takes a position contrary to her own, it is divisive; but, when it acts according to her views, it is wise.

She concludes her most blistering critique of the Church with her vision for a “reformed Church” that “can advance the vision of love of neighbor that the Gospels call for. As Jesus said, ‘As you did it to one of the least of these, you did it to me.’” I don’t believe the author took into consideration her own public record when she penned these lines about Jesus’s discourse on the Last Judgment from the Gospel of Saint Matthew.

When all is said and done, this author hopes and prays for a “new beginning” for her Church so that it can “preach a more balanced vision of the earthly ethics our faith requires—a bold, broad form of Christian virtue.” I believe her prayers have been and continue to be answered in a positive fashion, but her vision—perhaps for the time being—does not enable her to see and take account of this.   RJA sj

Law and Religion in the Public Square

St. John's University School of Law hosted a wonderful symposium on Friday on Law and Religion in the Public Square.   The keynote speaker, Noah Feldman, offered a compelling analysis of the complex relationships not only between religion and morality, but also between both of those concepts and the American public square.  The morning panel asked a fundamental question for American democracy: What is the place of religious conviction in our political life?  Although the three speakers advocated three distinct answers, what they all share is a commitment to finding a solution to the challenge of religious diversity—a solution that protects religious freedom, that promotes equal citizenship, and that strengthens our democracy.  At lunch, New York Times columnist and Fordham University Professor Peter Steinfels asked whether religious ignorance ought to be considered “a crime against the first amendment.”  Whatever the answer to that legal question, his call for deeper and broader religious education is one that we should all take very seriously indeed.  Finally, the afternoon panel (which included MOJ'er Rick Garnett) addressed the difficult problem of whether and how our commitment to religious freedom protects not only individuals, but also religious groups and institutions.  Can the Bill of Rights sufficiently defend the religious communities that many of us feel are necessary for personal freedom to flourish?  The speakers examined this question from various perspectives, including law, international relations, and American history.  The proceedings will be published in a forthcoming issue of the St. John's Journal of Legal Commentary. 

Abortion and the "Gay Gene"

Rob raises the issue of prenatal screening to remedy homosexuality, suggesting that this is not a good path to take.  I want to take this a step further.  If there is a gay gene (see information on gay sheep), isn't it likely that some parents will abort their unborn children if prenatal testing reveals a gay gene.  This happens regularly today with Down's Syndrome children and in India and China it happens regularly when the baby is a girl.  Won't some people, even some quite "progressive" people, rationalize the decision to abort by telling themselves that the world is a much too ugly and intolerant place for their beautiful gay child?  If my intuition is correct, I suspect that it will be the Catholics (and hopefully evangelicals) standing in fairly lonely solidarity with the gay community, advocating the right to life for these unborn children with the "gay" gene. 

Screening for "the Gay Gene"

Christians have rightly expressed skepticism toward prenatal screening, particularly since it is often used to provide information to justify abortions.  But what if the screening is used to remedy disorders, and what if the "disorder" in question is homosexuality?  Leading evangelical Albert Mohler suggested that such screening would be a good thing.  Now (former) Ave Maria University provost Fr. Joseph Fessio says:

“Same-sex activity is considered disordered. If there are ways of detecting diseases or disorders of children in the womb, and a way of treating them that respected the dignity of the child and mother, it would be a wonderful advancement of science.”

This is not a good road to head down.

Reason and Relativism

Bishop Giampaolo Crepaldi, secretary of the Pontifical Council for Justice and Peace, recently asserted that “Public reason is not possible in a culture that is dominated by the ‘dictatorship of relativism,' for a very simple reason: Relativism is a dogma and therefore it a priori rejects rational argumentation, even toward itself. . . . Relativism [denies] a capability of reason to argue truth . . . [and so] prevents the use of public reason.”  Villanova law prof Robert Miller shows here and here why this assertion is wrong.  Read his whole analysis, but here's a taste:

Crepaldi, like many Catholic thinkers, tends to lump together under the rubric of “relativism” several quite different moral doctrines, all of which differ from Catholic teaching and have become prominent in the twentieth century, but none of which (other than perhaps the emotivism of the logical positivists) involves a wholesale rejection of rational argumentation on normative issues.