Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

A Member of the Law Professor Blogs Network

Sunday, August 31, 2008

A quick comment on Gov. Palin

Our friends at dotCommonweal are having their own (occasionally heated) conversations about the wisdom and politics of the Gov. Palin pick in the comments boxes to various posts.  There are also some posts at the First Things and America blogs; I assume MOJ readers know all about them.  Ours is not primarily a politics blog, so I won't dwell on this, but I can't resist . . . I first heard of Sarah Palin back in 1982, when I was an eighth-grade high-school-basketball-wanna-be in Anchorage, Alaska and she was, up the road, leading her Wasilla High School team to the state championship.  I'll admit, I'm feeling (a rare feeling, I assure you) exceptionally savvy, having blogged about Gov. Palin's "pro-life witness" last month and having suggested to a few friends, months ago, that she could be the VP pick. 

We're (none of us) political consultants here, so I guess we'll have to wait and see whether this pick turns out to be more "risk" than "reward" for Sen. McCain, but I'll confess to being happy, and cautiously optimistic, about it.  If nothing else, it could be a "teaching moment" about the dignity of disabled children and the courage and inspiration of their parents.

UPDATE:  Well, after a day or so of some pretty gross rumor-mongering, it turns out that . . . Gov. Palin's 17-year-old daughter is pregnant (and keeping the baby).  Here's the statement:

We have been blessed with five wonderful children who we love with all our heart and mean everything to us. Our beautiful daughter Bristol came to us with news that as parents we knew would make her grow up faster than we had ever planned. We're proud of Bristol's decision to have her baby and even prouder to become grandparents. As Bristol faces the responsibilities of adulthood, she knows she has our unconditional love and support."

Bristol and the young man she will marry are going to realize very quickly the difficulties of raising a child, which is why they will have the love and support of our entire family. We ask the media to respect our daughter and Levi's privacy as has always been the tradition of children of candidates.

I can't resist:  This statement compares favorably to "punished with a baby", I think.

August 31, 2008 in Garnett, Rick | Permalink | TrackBack (0)

Jonathan Watson on punishment theory

MOJ-reader Jonathan Watson has posted a new paper on SSRN.  It's called "Punishment Calibration and Empirical Desert", and it's available here.  Abstract:

Professor Paul Robinson's major focus for many years has been punishment theory. He (among others - principally John Darley, a social psychologist), has gradually developed a theory of punishment called "empirical desert." Empirical desert is the idea that distributive theories of criminal liability and punishment must be based in the "community's notion of justice" if they are to have community respect, and thereby, effectiveness. Professor Adam Kolber also works in the area of punishment theory. His recent work, The Subjective Experience of Punishment , focuses on the idea that as all humans experience pain and suffering in different ways, punishments ought to be tailored accordingly, usually exemplified therein through variation on punishment locale or length. Examining Prof. Kolber's work through the lens of empirical desrt reveals potential problems which could arise for proponents of punishment theory. This paper discusses the two theories at length, outlines the problems which arise at their intersection, and suggests ways in which they might be reconciled.

Sounds fascinating.

August 31, 2008 in Garnett, Rick | Permalink | TrackBack (0)

Saturday, August 30, 2008

Peter Steinfels interviews Doug Kmiec on Kmiec's support for Obama

New York Times, August 30, 2008

For Ex-G.O.P. Official, Obama Is Candidate of Catholic Values

By PETER STEINFELS

When Douglas W. Kmiec endorsed Senator Barack Obama for president last spring, it made waves, especially among Roman Catholics.

A constitutional scholar who headed the Office of Legal Counsel under Presidents Ronald Reagan and George Bush, Mr. Kmiec was well known as an articulate opponent of abortion.

He explains his current stance in “Can a Catholic Support Him? Asking the Big Question about Barack Obama,” which will be published in two weeks by Overlook Press. But reached this week in Denver, Mr. Kmiec agreed to give necessarily brief replies to questions sent by e-mail.

Q. What is your position on the morality of abortion, and how is it related to your religious faith?

A. I fully accept the teaching of the church that participating in an abortion is an intrinsic evil. My acceptance of abortion as a grave, categorical wrong is one part respectful deference to authoritative Catholic teaching and one part reasoned deduction from our scientific knowledge of genetics and the beginning of an individual life.

Q. Would you like to see Roe v. Wade overturned?

A. Yes, but not on the terms usually suggested by Republicans. Roe is mistaken constitutional law not just because it invalidated state laws on the subject but because it is contrary to what is described as a self-evident truth in the Declaration of Independence, namely, that we have an unalienable right to life from our creator. It may surprise the general citizenry that not a single sitting justice utilizes the declaration as a source of interpretative guidance.

But even employing the jurisprudential methods applied by the modern court, there is no satisfactory showing that abortion as a matter of custom and tradition was properly found to be an implied aspect of the liberties protected by the 14th Amendment.

Q. Given those views, why do you support Barack Obama?

A. There is a widespread misconception that overturning Roe is the only way to be pro-life. In fact, overturning Roe simply returns the matter to the states, which in their individual legislative determinations could then be entirely pro-abortion. I doubt that many of our non-legally-trained pro-life friends fully grasp the limited effect of overturning Roe.

Secondly, pundits like to toss about the notion that the future of Roe depends on one vote, the mythical fifth vote to overturn the decision. There are serious problems with this assumption: first, Republicans have failed to achieve reversal in the five previous times they asked the court for it; and second, it is far from certain that only one additional vote is needed to reverse the decision in light of the principles of stare decisis by which a decided case ought not to be disturbed. Only Justices Thomas and Scalia have written and joined dissenting opinions suggesting the appropriateness of overturning Roe.

So given those views, the better question is how could a Catholic not support Barack Obama?

Senator Obama’s articulated concerns with the payment of a living wage, access to health care, stabilizing the market for shelter, special attention to the needs of the disadvantaged and the importance of community are all part of the church’s social justice mission.

Applying this to the issue of abortion, the senator has repeatedly indicated that he is not pro-abortion, that he understands the serious moral question it presents, and, most significantly, that he wants to move us beyond the 35 years of acrimony that have done next to nothing to reduce the unwanted pregnancies that give rise to abortions.

Q. But all the same, isn’t your support at odds with Catholic teaching?

A. Quite the contrary. Senator Obama is articulating policies that permit faithful Catholics to follow the church’s admonition that we continue to explore ways to give greater protection to human life.

Consider the choices: A Catholic can either continue on the failed and uncertain path of seeking to overturn Roe, which would result in the individual states doing their own thing, not necessarily, or in most states even likely, protective of the unborn. Or Senator Obama’s approach could be followed, whereby prenatal and income support, paid maternity leave and greater access to adoption would be relied upon to reduce the incidence of abortion.

It is, of course, not enough for a Catholic legislator to declare himself or herself pro-choice and just leave it at that, but neither Senator Obama, who is not Catholic except by sensibility, nor Joe Biden, who is a lifelong Catholic, leaves matters in that unreflective way.

In my view, Obama and Biden seek to fulfill the call by Pope John Paul II, in the encyclical “Evangelium Vitae,” to “ensure proper support for families and motherhood.” It cannot possibly contravene Catholic doctrine to improve the respect for life by paying better attention to the social and economic conditions of women which correlate strongly with the number of abortions.

Q. You have been fiercely attacked by some Catholic abortion opponents and in one instance barred from receiving communion. How do you feel about that?

A. To be the subject of an angry homily at Mass last April 18 and excoriated as giving scandal for endorsing Senator Obama and then to be denied communion for that “offense” was the most humiliating experience in my faith life.

To be separated in that public manner from the receipt of the eucharist, and to be effectively shunned or separated from the body of Christ in the sense of that particular congregation, has left, I very much regret to say, a permanent spiritual scar. Thankfully, it has also given me a new appreciation for the significance of the sacrament in my daily worship. And the priest, having been called to order by Cardinal Roger Mahony, sent me an apology, which of course I have accepted.

Nonetheless, I remain deeply troubled that other church leaders not fall into similar traps. That would do untold damage to the church within the context of American democracy.

There are clearly partisan forces that want nothing more than to manufacture or stir up faith-based opposition to their political opponents. The church has been careful to underscore that Catholics have unfettered latitude to vote for any candidate so long as the intent of the Catholic voter is not to express approval of a grave evil.

August 30, 2008 in Perry, Michael | Permalink | TrackBack (0)

Friday, August 29, 2008

Catholic Social Thought seminar

The year before last (time flies!), I taught a one-"quarter" class on "Law and the Catholic Social Tradition" at the University of Chicago.  (More here.)  I really enjoyed it, and learned a lot, so I'm delighted to have the chance to teach the class again, as a seminar, at Notre Dame.  The course is, for me, still a work in progress.  (My Notre Dame colleague and MOJ-friend Vince Rougeau has, of course, taught the course many times, so I have a good model to follow.)

Our first meeting was on Wednesday, and the idea was to introduce some big-picture themes and questions.  We read (a) selections from the Compendium (¶¶ 1-6, 60-104, 160-208), (b) excerpts from Deus caritas est (¶¶ 1, 20-22, 25-29), (c) Fr. John Coleman's essay, Neither Liberal Nor Socialist:  The Originality of Catholic Social Teaching, (d) Kevin Lee's chapter, The Foundations of Catholic Legal Theory:  A Primer, in Scaperlanda & Collett, eds., Recovering Self-Evident Truths (2007), and (e) Russ Hittinger's essay, Reasons for a Civil Society, in Hittinger, The First Grace (2003).

I had planned, originally, to turn in Week Two to an overview of the relevant (early) historical context (i.e., church-state relations and industrial changes between the French Revolution and Rerum novarum) but, instead, decided to move up material on "religion in the public square," because it seemed that our discussion about the relevance of CST to laws and the legal enterprise turned naturally to the problem of "imposing" religious beliefs in a pluralistic society.  So, next time, we'll be reading John McGreevy's chapters on the legal debates about the regulation of contraception and abortion, Robby George and Geoff Stone on "public reason", Greg Kalscheur on "moral limits on morals legislation", and some other things.  Should be fun!  Thoughts and suggestions welcome!

August 29, 2008 in Garnett, Rick | Permalink | TrackBack (0)

On Sanctity of Human Life: The National Election Choice Becomes Poignantly Clear

With the candidates for President and Vice President now having been announced for both of the major parties, the clarity — indeed the personal poignancy — of the choice on respect for the sanctity of human life is sharper than ever before in a national race. On what the Catholic Church in American has consistently said is the greatest human rights issue of our time in this nation, the two tickets could not be more different.

Senator John McCain, who will accept the Republican nomination for President next Thursday (barring a hurricane tragedy that postpones the event) has consistently voted to protect unborn human life during his many years in the United States Senate. Beyond his political record, when Mother Teresa of Calcutta presented Cindy McCain with two desperate orphan babies during one of Mrs. McCain’s many trips around the world to work with disadvantaged children, the McCains immediately took one of those children into their own home as their adopted child, also bringing the other baby home to live with another family.

By contrast, Senator Barack Obama, confirmed last night as the Democratic nominee for President, has never used his public authority to protect unborn human life. Quite the opposite. As a state legislator, he turned a cold shoulder when a nurse testified before his committee how she has repeatedly seen aborted children who survived being left to die over many hours in a filthy disposal room. Obama was so committed to unlimited abortion that he could not even bring himself to vote against infanticide, opposing legislation to require medical treatment of infants born alive after abortions and blasting the Supreme Court’s modest decision to allow banning of partial birth abortions. Obama has promised to appoint Supreme Court justices committed to Roe v. Wade, to reverse pro-life regulations, and to use taxpayer money to fund abortions.

Senator Joe Biden, now confirmed as the Democratic candidate for Vice President, has repeatedly rejected the teaching of his Catholic Church that public officials have a grave responsibility to end the culture of death and stand forthrightly against the destruction of unborn human life. Biden strongly supports Roe v. Wade and has consistently used his position on the Senate Judiciary Committee to campaign against every Supreme Court nominee who he believed might weaken the judicially-declared right to abortion. To be sure, Biden is not as extreme as his running mate, but then no Democrat in the Senate has gone as far as Obama in support of abortion. Biden voted against partial-birth abortion, a position that Obama sharply criticized. Biden occasionally has opposed federal funding of abortion, while Obama has called for repealing the Hyde Amendment and expanding public funding of abortion. Likewise, Biden (along with every other Democrat in the Senate) did support the Infants Born Alive Protection Act, which Obama worked so energetically to oppose in the state legislature.

And now, as yet another and even more powerful contrast, Governor Sarah Palin, who will be nominated as John McCain’s running mate, is consistently and unapologetically pro-life both in her political and personal life. In fact, contradicting any suggestion that Obama is more open to the moral witness of the pro-life movement than past Democratic presidential nominees, the Obama campaign’s very first statement on Palin's choice highlighted and attacked her opposition to Roe v. Wade. (The attack on Palin for opposing abortion came in the second sentence of the Obama statement, which used the first sentence to sneer at her former service as mayor of a small town).

A commitment to the sanctity of human life is hardly a mere political issue or the subject of political rhetoric for Governor Palin. Less than a year ago, she learned that the baby she was carrying had Down’s Syndrome. While she confessed that she and her husband were initially saddened by the news, they never considered aborting that child. They joyfully welcomed that baby into the world a little over four months ago. As Palin said at his birth: “Trig is beautiful and already adored by us. We knew through early testing he would face special challenges, and we feel privileged that God would entrust us with this gift and allow us unspeakable joy as he entered our lives. We have faith that every baby is created for good purpose and has potential to make this world a better place. We are truly blessed.”

What an amazing and compassionate woman in public life we have in Sarah Palin! (Yes, I’ll freely admit it, I am moved and delighted by her selection to run on the Republican ticket.) Tragically, the evidence suggests that the overwhelming majority of women who learn they are carrying a Down’s Syndrome child later undergo an abortion. Governor Palin will become an even more prominent witness for life through this nomination. Together with John McCain’s openly expressed and consistent pro-life record, Sarah Palin’s addition to the national ticket presents us with a clear and distinct choice on respect for unborn human life.

Greg Sisk

August 29, 2008 in Sisk, Greg | Permalink | TrackBack (0)

The Content of Dignity

The recent discussions of the location and foundation of human dignity -- is it primarily inherent in discrete individuals, or is it relationship-oriented? -- are interesting.  But it seems to me that the only well founded of Steven Pinker's recent criticisms of dignity was the concept's lack of developed content, its ambiguity on lots of questions.  For example, does human dignity forbid, or allow (even require as some say), holding a person responsible with his life for murdering another?  To take another, Is dignity defined primarily by autonomy, or by substantive norms of behavior reflecting the highest possibilities of being human?  How do we advance on fronts like this?  (Admittedly, this is also true of other foundational concepts like "freedom," but to that extent those concepts also are not real helpful except for rhetoric, and need to be analyzed further.)  Does answering the question whether dignity is a "way of being human" or a "property of being human" gets us very far on determining what human dignity requires?

August 29, 2008 in Berg, Thomas | Permalink | TrackBack (0)

Abortion, Economic and Social Policy Issues

I begin by thanking Michael P. for bringing to our attention the recent report prepared by Catholics in Alliance for the Common Good entitled “Reducing Abortion in America: The Effect of Economic and Social Supports.” As I recall, last October, one of my favorite authors and contributors to the Mirror of Justice [HERE] had this to say about law making regarding economic and social support that could address and minimize and eliminate the need for abortion:

The moral considerations underpinning Catholic legal theory would enable the law-maker to consider more or all rather than some of the issues that must inevitably intersect abortion laws. Today so much of the law in this country pertaining to abortion permits abortion—with few restrictions—and bases the justification on Constitutional requirement (which I submit results from an erroneous interpretation in the Roe progeny), the argument from privacy, and, more recently, the argument from equality. The focus of abortion law seems to be on the welfare of the mother only. This becomes patent when judges, state and Federal, scrutinize legislation and regulation looking for the “essential” health exception clause to protect the mother only.

Catholic legal theory, in contrast, begins to look at other welfares, too. The mother’s health and welfare are surely important; but so is the health and welfare of the child whose life will be snuffed out should the abortion proceed. But it is also vital to recognize that the mother has other issues that are often ignored or dismissed as long as she can be allowed to terminate her pregnancy. What might these issues be? Well, informed consent is a place to start. Does she really know what is about to happen? Does she really understand what is inside her womb? Would she want to have an abortion if she could see her child? (Ultrasound imaging would provide her with this critical information.) Has she been provided with education about effective parenting skills? Is pre and post-natal care available for her and her child to ensure good health for both? Catholic legal theory would also provide for the welfare of the father? Where is he? Should provision not also be made for encouraging his responsibility for the life he helped promote by developing among other things his parenting skills? It seems that the law-maker is not restrained from including these provisions relating to these matters as well. Cannot the law-maker provide for orphanages, foster care, and adoption services for children whose birth parents will not or cannot properly care for the raising of the child?

Indeed, the law-maker can provide for all these things and more.

But the critic may well argue that the additional elements will cost money. The Catholic legal theorist can respond by reminding the critic that laws addressing defense, environment safeguards, historical preservation, criminal justice, wildlife protection, etc. (all of which have moral considerations) also cost money. But in spite of their cost, laws are made to advance these interests and protections. Why can the law not do the same to preserve young human life and the lives of those responsible for its conception? This is the response of one Catholic legal theorist.

I am grateful that others are beginning to think along these same lines. In the meantime, the grim reaper who uses the pseudonym “Abortion Rights” continues to take its tragic and avoidable toll.

RJA sj

August 29, 2008 in Araujo, Robert | Permalink | TrackBack (0)

Thursday, August 28, 2008

Still more on human dignity

I appreciate Rob's and Fr. Araujo's recent posts on my teacher David Luban's recent book and human dignity.  Rob quoted this particular passage from Luban's Legal Ethics and Human Dignity:

"I suspect that human dignity is not a metaphysical property of individual humans, but rather a property of relationships between humans -- between, so to speak, the dignifier and the dignified.  To put it another way, 'human dignity' designates a way of being human, not a property of being human."

Interesting.  I'd want to be able to say that even a human being whose relationships are all lousy and dysfunctional still has, as a human person, "dignity" and worth.  That said, there's something to this "relationships" idea, it seems.  I was reminded by David's claim of Nicholas Wolterstorff's new book, "Justice:  Rights and Wrongs" (my review is forthcoming in First Things).  Wolterstorff contends that only a theistic account -- and not a secular account -- of "human dignity adequate for grounding human rights" is possible.  In his view, the key is "bestowed worth" (think of "The Velveteen Rabbit"):  "What we need, for a theistic grounding of human rights", he writes," is some worth-imparting relation of human beings to God that does not in any way involve a reference to human capacities.  I will argue that being loved by God is such a relation; being loved by God gives a human being great worth."

August 28, 2008 in Garnett, Rick | Permalink | TrackBack (0)

Reflections on Forming Conscience

The new issue of the Journal of Catholic Legal Studies contains a Symposium that will be of great interest to MOJ readers.  The Symposium, titled Catholic Teaching, Catholic Values and Catholic Voters: Reflections on Forming Conscience for Faithful Citizens, contain six essays offering a range of perspectives on the USCCB's document on policital responsibility and faithful citizenship, and generally on the question of conscience and voting.  Among the six are essays by MOJ'ers Robert Araujo, Amy Uelmen and me.  All six essays (along with an introducion by Prof. Michael Simons of St. John's University School of Law, who is the faculty adviser to the journal) are available on the journal's website here.  The Symposium makes a valuable contribution to the public debate on faithful citizenship.

August 28, 2008 in Stabile, Susan | Permalink | TrackBack (0)

Abortion and money

With respect to the study to which Michael linked yesterday, a few thoughts:

First, on the issue of "mov[ing] beyond the stalemate over Roe v. Wade".  As I wrote here, yesterday, while it would be a good thing, certainly, if legislators in both parties could unite behind sensible social-welfare programs that result in fewer abortions -- a good start, perhaps, would be for Sen. Obama to endorse the Pregnant Women Support Act; and while it is certainly true that overturning Roe would not end abortion; it is, in my view, a mistake to think that the wrong that is Roe can be shrugged off as a stalemate or that the issue here is only the number of abortions:

Yes, overruling Roe would not end abortion (though it would certainly make a difference).  This side of Heaven, I'm afraid, nothing will.  The problem with Roe, though, is not just that because it facilitates wrong choices by private persons; it is also, and fundamentally, at odds with our constitutional structure and with democratic self-government.  As long as Roe is the law, We the People are not allowed to write into law the conviction — assuming that it is or becomes our conviction — that the unborn child ought to be protected from lethal private violence.  The debate is cut off; the conversation is silenced; the "dialogue" that is so often celebrated by the same people who are enthusiastic about Sen. Obama is distorted.

What is at stake in the abortion debate — and, as someone who has known and admired Doug Kmiec for years, I am sorry that he seems to be forgetting this — is not only reducing the number of abortions and helping women considering abortion to find their way to a different choice (though, of course, such reductions and help are important, and one wishes that Democrats for Life had more influence); it as about repairing the damage done to our political community, and to our constitutional order, by a decision that declared that the Constitution itself disables citizens from protecting in law the most vulnerable among us.

Even if we focus specifically on the number of abortions (and not on Roe), it seems worth noting that if, on the one hand, we have evidence that social-welfare programs can reduce the number of abortions, it seems, on the other, quite likely (to put it mildly) that public funding of abortion, and the other provisions of the Freedom of Choice Act (which will certainly become law if Sen. Obama is elected) will increase the number of abortions.  In the press release, issued by Catholics in Alliance for the Common Good, a spokesperson is quoted:

“This new research suggests that the Pregnant Women’s Support Act is exactly the kind of sound public policy that can lead to lowering the abortion rate in America,” said Kristen Day, Executive Director of Democrats for Life, referring to legislation in Congress aimed at reducing the abortion rate. “This discussion will prove that hope and change are possible in Washington if we focus on creating solutions based on shared values,” she said.

Again, "solutions based on shared values" sound great.  The Freedom of Choice Act -- a dramatic roll-back of anti-abortion legislation, a mandate for public funding of abortion, a threat to conscience and religious freedom -- is not such a solution.  But, it's coming.

August 28, 2008 in Garnett, Rick | Permalink | TrackBack (0)