April 04, 2014
The Progress of Defenestration
Following up on our friend and good colleague Robert George’s contribution addressing the firing of the Mozilla Chairman, Brendan Eich, for exercising his Constitutionally protected rights to the detriment of no one, I would like to offer a simple complementary follow-up today to reawaken the responsibility of public duties held by Catholics and all people of good will. History informs us of our duties in public life.
In the law, history plays a prominent role as it does in so many other human enterprises. Members of society in general, and this includes Catholics, must keep in mind the lessons of the past so that the same mistakes and tragedies will not be repeated in the present day. In 1947, Christopher Dawson (about whom I have written before) discussed the issue of Catholics (and, I think, all people of good will) and the dangers of their remaining passive in the face of public duty. As he said, “they prove false to their own temporal mission, since they leave the world and the society of which they form a part to perish.” There is growing evidence that over the years we Catholics and other people of good will have trusted our leaders, neighbors, and fellow workers with their agendas about the nature of public life and have failed to respond out of right and duty. A part of this evidence is that the teachings of the Church that advance the common good and therefore the commonweal are no longer not only not welcome but not permitted. Timidity rather than embracing the counsel of Sacred Scripture, “be not afraid,” describes us accurately. The Eich firing is an illustration of the totalitarian juggernaut which indecorously brands him “anti-gay” when, in fact, he made a contribution to a particular political cause joining the ranks of many other fellow Americans who concluded that Proposition 8 was a cause they wished to support out of right and duty as citizens.
The law is a part of politics and public life in our society, but there is also mounting substantiation that not all views are welcome in public debate concerning the progress of law and legal regimes; moreover, there is clear indication that some views will be stamped out because they stand in reasoned opposition to the views held by others. In the current political and evolving legal climate that is taking our nation and our world in a dangerous direction, Dawson has further wisdom that serves as a catalyst to reawaken our public duty. Although he was speaking principally of developments in the academy of the late 1950s, his words apply to public life (including politics and law) as well:
[I]f Christians cannot assert their right to exist in the sphere of higher education, they will eventually be pushed not only out of modern culture but out of physical existence. That is already the issue in the Communist countries, and it will also become the issue in England and America if we do not use our opportunities while we still have them. We are still living internally on the capital of the past and externally on the existence of a vague atmosphere of religious tolerance which has already lost its justification in contemporary secular ideology. It is a precarious situation which cannot be expected to endure indefinitely, and we ought to make the most of it while it lasts.
Totalitarian juggernauts are malevolent, but they have a powerful will and they can prevail, even if only for a time, and eradicate any and all opposing views. This is why it is all the more important for all people of good will today, including faithful Catholics who believe and live what Christ’s Church teaches, to take seriously the thought of Edmund Burke that for evil to prevail in the world, all that is necessary is for good people to do nothing.
March 31, 2014
Dignity as a Constitutional Principle
This past Sunday, March 30, The New York Times published an op-ed piece by Bruce Ackerman, the well-known professor of law and political science who has taught at Yale for many years. Ackerman’s contribution to the ongoing Constitutional debate was published under the title “Dignity Is a Constitutional Principle.” The focus of his opinion essay is on the same-sex marriage issue. The essence of his thesis, echoing the perspectives on human dignity found in cases such as Windsor v. United States and Lawrence v. Texas (relying on Planned Parenthood v. Casey: “These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment.”), is that laws prohibiting same-sex marriage are unconstitutional as they constitute an “assault on human dignity.” Professor Ackerman concludes his essay by quoting the Biblical Golden Rule cited by Senator Hubert Humphrey in the debate surrounding the passage of the Civil Rights Act of 1964: “Do unto others as you would have them do unto you.”
As an aside, it appears that Biblical references do not get automatically excluded from political and legal debate if they serve the interest, in some fashion, of the goal of the speaker who might otherwise argue that such a reference runs afoul of the Establishment Clause of the First Amendment. But let me return to my fundamental point for today.
Both Professor Ackerman and the resources upon which he relies do not define the important term dignity. Does an important term like this one which is used for advancing Constitutional claims require a sound definition so that when the term is used in political and legal discourse its meaning is clear to all who use it? Or is it assumed that the term needs no definition because there is universal understanding and acceptance of the term’s import? As friends and readers of the Mirror of Justice may recall, I, for one, think the clear and agreed meaning of language is critical to civilization and to the law that is a servant instrument of civilization. If the meaning of crucial language used in legal and political debates remains ambiguous, our legal and political discourse will be pointless.
If it is assumed that dignity is that which is due to anyone’s views, regardless of whether the views possess objectively reasoned merit, we are in trouble. We are in trouble because the position of the most aggressive totalitarian will be equal in dignity to the position of the most virtuous saint. If language’s meaning is relevant to legal theory, what is the Catholic take?
One can begin with a general understanding that human dignity has to do with qualities of the possessor that are worthy, have worthiness, and have worth. Worth (the root word used along with two of its derivatives in the previous sentence) means that there is honor in the holder who claims the dignity. Worth means that there is character or standing of a person in respect to that person’s moral and intellectual qualities and abilities. Jacques Maritain offered helpful insight about the sense of human dignity when he defined it this way: it “means nothing if it does not signify that by virtue of the natural law, the human person has the right to be respected, is the subject of rights, possesses rights. There are things which are owed to man because of the very fact that he is man. The notion of right and the notion of moral obligation are correlative.”
The first sentence presents the fundamental role of the natural law in defining dignity. I consider that natural law is the exercise of objective human intelligence comprehending the intelligible reality of the universe, which includes the nature of the human person. The third sentence of Maritain’s formulation is also crucial because human dignity is nothing if the claim to rights that are aligned with human dignity ignores the complementary and correlative moral responsibility that must attend all rights claims. These thoughts are absent from Professor Ackerman’s op-ed in yesterday’s Times. Although he cloaks his dignity argument in equality claims, he does not mention that while everyone is equal in certain fundamental ways (hence the equality between races in the contexts of voting and public accommodation) not everyone shares the same talents or interests. Hence, people do have differences that distinguish them from one another without these differences assaulting their human dignity and without undermining the importance of human dignity in rights discourse.
The op-ed article presents the view that there are no differences between opposite-sex unions and same-sex ones. Nonetheless, the distinction that many people still make between opposite-sex and same-sex couples demonstrates the need to consider legitimate distinctions when the topic of human dignity is under discussion. The rhetoric that these two kinds of relationships are the same for the purposes of marriage and human dignity does not, in fact, make them the same. Dignity may well be a Constitutional principle when it concerns the fundamental equality of humans on the basis of thoughts that correspond to the Maritain formulation. But it is not a Constitutional principle when the dignity/equality argument fails to consider and acknowledge the differences between people that are acknowledged not by human caprice but by objective intelligence comprehending the intelligible reality of differences in the nature and essence of the human person. Authentic human dignity is based on the truth about the human person and not the falsehood of political claims and the rhetoric used to justify these false claims. Objectively reasoned distinctions are critical to understanding equality claims and human dignity when they are considered Constitutional principles. Politically popular claims that do not take account of the reality of our objective intelligence that acknowledges authentic human nature do not advance but, rather, impede human dignity. Moreover, opinion polls siding with views that claim to be “on the right side of history” do not always serve authentic democracy, especially when they simply confirm the empty promises of a totalitarian regime.
March 16, 2014
Is Democracy in Trouble; and does Catholic legal theory have a solution?
Thanks to Rick for bringing to our attention the recent article in The Economist entitled “What’s gone wrong with democracy.” I have not read Prof. Philpott’s book to which Rick also referred, but I hope to do so soon. However, I recently completed Erik Larson’s In the Garden of Beasts, which is an account of Ambassador William E. Dodd’s experience as the U.S. ambassador to Germany from 1933 to the end of 1937.
When Amb. Dodd returned to the U.S. in early 1938, he delivered an address in New York City and warned Americans and the world how democracy was in peril. It was not necessarily in peril solely because of totalitarian regimes like those of National Socialism in Germany or Soviet Communism in Russia. The source of the problem identified by Dodd went to democracy itself. As he said in his speech, even though humanity was in great danger of an impending disastrous world conflict, “democratic governments seem not to know what to do.” He was aware of the failure of the U.S and the great European democracies to respond to Hitler’s early threats even though there was ample warning. Thus, in Dodd’s estimation, “Western civilization, religious, personal and economic freedom are in grave danger.” (Those who argue that the Mirror of Justice addresses too frequently the issue of religious liberty today should take note.)
Dodd argued that the antipathy of the United States was attributable to the government itself and “certain privileged business groups” who let the crisis that led to World War II happen. Today I would add a third attributable source to this group who allow crises to emerge and prosper: those special interest groups who claim to represent everyone but, in fact, represent their own narrow and often valueless and amoral interests. Has The Economist article changed the analyses of Dodd’s insight?
From my perspective, if offers some solid evaluation of the problems which democracy must face if it is to survive, but it is also off the mark on other of its assertions.
The first point of value in The Economist article focuses on the desire for “rules-based democracy.” This is vital to democratic institutions if the rules (laws) that the democracy promotes and promulgates emerge from objective human intelligence that comprehend intelligible reality and serve the common good. But when the rules a democracy promotes are based not on this formula but on self-interest that denies the existence of objective intelligence and the common good, democracy can easily become a thinly-disguised totalitarianism as Christopher Dawson warned in the early 1950s and as Blessed John Paul II presaged in 1991 in Centesimus Annus.
A sustainable democracy, as The Economist claims the U.S. was, takes hard work of those members of society who are simultaneously its members. Benjamin Franklin was asked a question at the conclusion of the Constitutional Convention in 1787 by a Mrs. Powel, “What, Dr. Franklin, have we got, a republic or a monarchy?” Franklin’s pithy response was: “A republic if you can keep it.” Franklin’s response asserts that republican democracy is the work of everyone who is a member of the polis. It is not the preserve of the state—which ought to be a servant rather than master of the people who are governed—or of special interests; rather, it is the right and responsibility of all the members of the polity. And herein resides the problem which The Economist article attempts to address.
As the article implies, once crises are over, everybody—with the exception of the technocrats and special interests—seem to go on holiday. But democracy is and remains the work of the governed less they become the subjects of present-day overlords. The words of Lincoln at Gettysburg remind us that the government of the United States is “of the people, by the people, and for the people.” But if the people should lose interest in their right and duty to govern themselves, then many of the problems raised by The Economist emerge with growing ferocity because the government as defined by Lincoln has perished.
A major source of the challenges for democracy, according to the article, is that people are satisfied with receiving benefits from a welfare state but are not interested in contributing to the ruling of the state. Oddly, the article argues that present day China may be an attractive alternative to democracy. While the Chinese regime, as the article states, is obsessed with control, it pays close attention to public opinion. As the authors posit, “Many Chinese are prepared to put up with their system if it delivers growth.” The state has delivered growth, but that growth is now in decline. What will the state deliver in the future if this trend continues as it likely will? Public opinion is not the effort that promotes a durable democracy.
Ironically, the parallels between the problems identified by the article concerning Western democracy and the alleged solutions of China are the same: give the populace what they want right now. Democracy is hard work, the work of those who are simultaneously the governed and the governor. Bread and circuses did not work for Rome nor will this solution work for China, the U.S., or any other nation that calls itself a democracy. One Chinese academic referred to by the article argues that democracy is destroying the West. But this is not true. It is an imposter of democracy that is generating the problems which are corroding the cherished values that must be associated with self-governance.
The Economist further contends that “individual rights and independent judiciaries” are vital to stable and thriving democracy. To an extent, there is some truth to this claim, but more is needed for the claim to be true for the long run. Rights are a popular item for discussion today, but too many advocates for them forget about or even deny the correlative responsibilities that must accompany the claim to rights if the rights that are championed are to be durable. Moreover, rights are self-evident and the gift of the Creator and the source of human dignity. They cannot be the gift of the state, of some political party, or of a special interest. If they are, then they are gossamer. In addition, hard questions need to be addressed about what makes the judiciary independent? Independence from special interests and the power of a totalitarian state is a desirable thing, but independence from the accountability of objective intelligence that must comprehend the intelligible reality of human nature and the world so that the common good can be advanced is not desirable if the noble institution of self-governance is to survive.
I now find myself living in a part of the U.S. that calls itself the Cradle of Liberty. There once was a great sense of pride in this label because the region was a crucible of participation in the common life of the res publica in which the members of society were free to express their opinion and make their substantive contribution. Today, however, if one departs from the thinking of a one-party state where any departure from its orthodoxy is viewed as treason or bigotry, the end of democracy is not only near, it has arrived and taken up residence from which it seemingly cannot be saved. The desire to offer well-formulated objective reasons for alternatives to the product of governance may benignly be dismissed as some form of eccentricity; however, it can just as easily be treated as a new enemy of the state. The “micro-powers” of which the article discusses are not only evident in the world of international law and politics and the operations of NGOs and transnational lobbyists; they are also present in the backyard of local and regional politics in the U.S.
The article is on target when it mentions that the greatest challenge to democracy is from within the democracy itself. As the comic strip character Pogo said: we have met the enemy, and he is us. This is what Dodd contended in 1938; what Christopher Dawson identified as a growing problem in the early 1950s; and what John Paul II discussed in 1991. “[L]iv[ing] from day to day, indulging in the pleasure of the moment” is antithetical to good governance especially if it terms itself a democracy. The stability of such a democracy is only that of an edifice made of cards: impressive to look at but inherently unsound when even the smallest disturbance is present. The clear antidote is participation and responsibility. As was attributed to Edmund Burke, all that evil needs to triumph is for good people to do nothing. Apathy of the events of the day is a recipe for chaos and disaster. And that is where the Catholic academic who participates in the development of Catholic legal theory has and must exercise a responsible role in addressing the problems raised in The Economist article.
As teachers of the law we prepare the lawyers of tomorrow who will be leaders of their communities as practitioners, legislators, administrators, and judges. They are also citizens; they are members of the self-governed. What values do we inculcate in them? What kind of reasoning do we offer to them? What models of our own behavior do we present for their consideration? Our influence to alter the course that may lead to the end of democracy is not insignificant. We are not reformers; rather, we are renovators of the most durable form of governance yet established: the governance of, by, and for the people themselves. From our responsible participation, may others learn well, for the once cherished institution of democracy is at stake.
March 01, 2014
Bigotry, Discrimination, Teaching, and Catholic Thought
A number of my friends here at the Mirror of Justice have recently addressed a variety of issues (e.g., the Arizona RFRA-styled legislative proposal just vetoed by the governor; new articles and editorials in America magazine discussing laws that are “crimes” and the Church’s attitude toward same-sex attraction and sexual activity; religious freedom; the role of government and law in society; etc.) dealing with the pressing questions that provide forums for the presentation of differing views on human sexuality and the legal protection that these views merit or may merit. A subtext pertaining to these issues from a legal perspective is the political idea and ideal of equality and the reality of equality. A further subtext is the role of religion—particularly Catholicism—in these issues and the discussions and debates that surround them.
It is assumed by some participants in the current political and academic debates on these matters concerning human sexuality that any difference in treatment or status between same- and opposite-sex is prima facie unlawful because it is discriminatory. But the notion of discrimination needs to be considered carefully so that it is understood accurately by society in general and by the law in particular. This is where the vocation of teaching and the discipleship based on Catholic thought have a crucial role to play.
The teachings of the Catholic Church condemn discrimination that is unjust (that’s a big modifier that will need more attention somewhere else, perhaps in another posting at this website). Why does the Church use in her teachings this crucial modifier? It would be illogical to condemn all discrimination across the board because human civilization and human nature rely on proper, i.e., just, discrimination. Those of us who are or who have been teachers discriminate in many ways. We discriminate in the evaluation of faculty candidates when we hire some but not others. We discriminate when we make substantive distinctions between and among student papers and final exams. We discriminate when we exercise our role in faculty governance by deciding which proposals before us we accept and which we reject. But these discriminations are not unjust because they are warranted, or should be, by substantive merits or their absence. In spite of some student protests, not all students will receive an A. Despite their aspirations, not all candidates for faculty positions will be offered teaching posts.
Yet, discrimination is not restricted to the world of the academy. Discrimination is exercised legitimately throughout human civilization when people make decisions about what cut of meat they can afford at the super market, or how big of an addition to their home will their budget permit, or how large a contribution, if any, can they make to alma mater. The list of discriminations that are admissible, perhaps even meritorious, goes on and on.
Nonetheless, some participants in the present day disputes concerning human sexuality press the argument that any difference of treatment between same-sex-this and opposite-sex-that is unlawful because some people are being treated differently from others. Therefore, such differing treatment is discriminatory and may very well be based on bigotry.
But this is not so because these claims are untrue.
They are untrue because the objective intellect, not political will and the might that often accompanies the will, comprehending the reality of the nature of the human person, human physiology, and biological differences can demonstrate that there are dispassionate distinctions separating and distinguishing the worlds of same-sex and opposite-sex. It is not bigotry to make this claim. Neither is it religious or other superstition. Rather, it is reality grasped by the objective and impartial intellect that makes and supports the distinction. But in the minds and resulting positions of some, the reasoned distinctions made between same-sex and opposite sex are impermissible because they are, from the outset, “bigoted” or “unlawful” without the need for further comment or justification.
This last point describes a vast element of the political and, therefore, legal world that we inhabit today and the supporting mentalities that faithful Catholics encounter that are forcing a dramatic and perilous change in the law and civilization. Thus, it is the duty of the Catholic teacher who remains true to the faith to point out with reason, with humility, with respect, and with resolve that this that claims about unlawful discrimination based on different treatment between same-sex and opposite-sex are wrong. It may well be that the time for the faithful Catholic teacher to pursue this responsibility is growing short, but the duty remains as long as these overwhelming errors persist. This duty can and should be welcomed where authentic dialogue exists. However, another hallmark of the present age is the attitude that relies largely on the success of one’s position, not because of reasoned argument but because of political clout and little else.
January 30, 2014
The Pope’s Words to Notre Dame and to all Catholic Educators
Today, Pope Francis, S.J., had an audience with a delegation from Notre Dame. Rick, I am sure you are basking in this honor!
The Holy Father offered instructive words intended not only for Notre Dame, but for all persons involved with Catholic higher education. This would surely include legal education and the enterprise which is pursed at the Mirror of Justice. The major theme of the pope’s address is presented in these words of his,
In my Exhortation on the Joy of the Gospel (Evangelii Gaudium, hereinafter EG), I stressed the missionary dimension of Christian discipleship, which needs to be evident in the lives of individuals and in the workings of each of the Church’s institutions. This commitment to “missionary discipleship” ought to be reflected in a special way in Catholic universities (cf. EG, 132-134), which by their very nature are committed to demonstrating the harmony of faith and reason and the relevance of the Christian message for a full and authentically human life. Essential in this regard is the uncompromising witness of Catholic universities to the Church’s moral teaching, and the defense of her freedom, precisely in and through her institutions, to uphold that teaching as authoritatively proclaimed by the magisterium of her pastors. It is my hope that the University of Notre Dame will continue to offer unambiguous testimony to this aspect of its foundational Catholic identity, especially in the face of efforts, from whatever quarter, to dilute that indispensable witness. And this is important: its identity, as it was intended from the beginning. To defend it, to preserve it and to advance it!
I have two brief points to make of these words of the pope.
The first is that they have a tremendous bearing on the work and debates that take place here at the Mirror of Justice. After all, the discipline and study of law, certainly within the context of efforts directed at developing Catholic legal theory, involve moral issues; thus, those who pursue legal education from and in a Catholic perspective ought to be concerned about the Church’s moral teachings (including their propagation and defense) and the Church’s freedom to pursue those engagements with civil society that the Church chooses to engage. This responsibility is unambiguous and cannot be compromised—no matter how inconvenient; no matter what pressures may be faced.
The second point is much closer to home for me. While our Holy Father was addressing a distinguished delegation from a highly regarded school founded by the Congregation of the Holy Cross, I am quite confident that he did not exempt from the application of his exhortation the twenty-eight colleges and universities founded by his (and my) religious order, the Society of Jesus. There is no question that these institutions also have a crucial role in “the uncompromising witness… to the Church’s moral teaching, and the defense of her freedom, precisely in and through her institutions, to uphold that teaching as authoritatively proclaimed by the magisterium of her pastors.” It may be that there are some within the Jesuit network of higher education institutions who are willing to compromise on such matters, but I know that there are dedicated, faithful people who view such compromise as a betrayal of one’s duty as a disciple of Christ. Pope Francis is clearly one of them, for he recognizes that the unambiguous witness of the Christian cannot compromise on any matter central to the Catholic faith.
Time will tell to what extent his words and the sentiments they carry are shared within the world of Jesuit higher education.
January 24, 2014
A follow up to “Gay Marriages Confront Catholic School Rules”
I am grateful to Rick’s posting on the issue involving the employment status of Mr. Zmuda at Eastside Catholic in Seattle, WA. I agree with Rick that we will see more and more of these cases in which employees of Catholic institutions manifest their disagreement with fundamental Catholic principles not because of thoughts, or in the case of Eastside Catholic—sexual orientation, but because of actions. Here we can recall the truth that underpins one of the old legal maxims: actions speak louder than words.
Rick’s posting raises the issue of discrimination that some believe has been applied to Mr. Zmuda. But this issue pertaining to discrimination mandates further scrutiny. The question is not whether this man has been discriminated against but, rather, has he been discriminated against unjustly. For example, if Eastside Catholic discharged him on grounds that he did not have the qualifications he claimed on his resume that are required for the post he holds, the ensuing discrimination in terminating his employment would not be unjust but, rather, just. To put this matter more broadly, none of us discriminate against someone who claims to be an excellent barber, doctor, lawyer, plumber, carpenter, etc. if this person does not, in fact, have the training, other credentials necessary, and the competence to perform the services which are claimed to be within the competence of the person when in fact they are not.
When it comes to role modeling the virtuous life of one who wishes to be an example for young people, a Catholic educational institution would not be unjustly discriminating against someone if he or she claimed the virtues but did not, in fact, exercise them in his or her personal life. Thus, Catholic parishes and dioceses have not unjustly discriminated against financial stewards whose employments were terminated when it was discovered that these employees were embezzling funds from the parish or diocese.
I understand Rick’s point about certain privacy matters where a person may not wish his or her sexual orientation, income, tastes in music, preferences in literature, or views on the status of the unborn, and other topics becoming targets of public scrutiny. But marriage and the announcement about it is a public matter because it is a public institution as well as a matter of personal intimacy. When someone announces the fact that one is married (or supports abortion, or is “pro-choice”), this person voluntarily enters the public square and asserts his or her views about issues that concern the common good and the Church’s teachings. By making an announcement about one’s marriage, he or she says something about himself or herself in the context of a public institution. Regarding the institution of marriage, the Church has something to say about this because she has very clear views on this public institution.
The student who is quoted in the Times article mentioned by Rick and who contends that, “It was just shocking that the Catholic Church would turn its back on a teacher for something that didn’t affect his work performance” is wrong. As Rick notes, this is an important question because Mr. Zmuda’s acts do intersect his work. Why?
Mr. Zmuda is teaching by his example, and his teaching is contrary to the Church’s clear teaching on the subject of marriage. If the students do not hear the reasons for why this man was dismissed, might it be due to the fact that first principles of the Catholic faith are being minimized in their importance at Eastside Catholic? Might it be that these teachings and their justifications are being given short shrift at Eastside Catholic? If Eastside Catholic is not doing its job of teaching the faith or doing it well, it is a matter that has an impact on Mr. Zmuda and Eastside Catholic’s work performance because students are led to believe and accept something that they should not be led to believe and accept as true or as proper or as virtuous or as something only involving one’s private life.
As Rick also notes, there may be more of these incidents at both Catholic institutions of education but also other organizations which bear the moniker Catholic. If this is indeed what is to materialize, and I think Rick is correct on his surmise, then let me offer a bit of hope as to one course of action that might be pursued: the incident involving Mr. Zmuda should give all of us concerned about his dismissal the opportunity to better understand how the integrity of the Catholic faith intersects our public institutions including the law. This objective will also assist the faithful to understand more clearly our faith by comprehending what it is that the Church teaches and why she teaches what she does.
January 09, 2014
Objective Reality versus Reification
I should like to thank Kevin Walsh and Marc DeGirolami for their fine presentations yesterday on several pressing issues concerning the legal challenge of the Little Sisters of the Poor to the HHS mandate and related Government demands. There is a great deal of misinformation circulating about the mandate—some of from the media, some of it from prominent persons, and some of it sadly from the Government itself. Thus, there is a great deal of misunderstanding about the legal challenge initiated by the Sisters, and I am grateful to Kevin and Marc for their excellent clarifications. Some of the problems with the mandate are to be found in a law of questionable integrity and durability.
Why do I say this? Why do I make these charges?
I go back to the fact that the original legislation was several thousand pages long. I do not think it wise or prudent to enact legislation of such magnitude, especially under pressing time constraints where legislators, their staff members, and the public have a grossly incomplete picture of the the bill and the law it can become. The legislative process, in spite of political compromises and generalities that must be taken into consideration, is still an intellectual process that leads to the development of norms, some of which are enforceable by criminal and civil sanction. The bills that become laws should therefore be understood by those responsible for their making and for the citizenry whose lives will be affected. If this understanding is absent, how can lawyers and judges fairly explain their meaning?
We are still learning much about what the Obamacare statute contains; moreover, it will take still more time to interpret objectively its many provisions, some of which appear to or do conflict with one another. The former speaker of the House was correct on one matter on the eve of the statute’s passage by a slim majority of the House of Representatives—and I do not say this with admiration for the substance of what was said: we just have to pass the bill to know what’s in it. This is a terrible way to make law. What is in the bill should be known by those responsible for its passage before it becomes law and affects, often adversely individuals and the common good.
But Obamacare, which is being legally challenged on a number of fronts, is the law, for the time being—complete with its benefits, its problems, and its sanctions.
As Marc and Kevin have demonstrated, there are sound arguments that demonstrate the laws many Achilles’s heels. With time, more sound arguments will reveal more defects in the statute. As Marc and Kevin have capably illustrated, the Government’s arguments to justify and uphold questionable provisions that are, in turn, supported by influential media voices fail to take stock of the objective meaning of the language of our fundamental law, the Constitution of the United States, and the reality that surrounds the Constitution and the flawed Obamacare legislation.
Today’s first reading for the Mass of the day is taken from the first letter of Saint John. This text from sacred scripture reminds us that there are those who take liberties with the truth that surrounds important matters. Such a liberty compromises, sometimes fatally, the truth of human existence and the norms that should uphold the common good that it designed to protect each and every person’s legitimate interests.
It is clear that the Government and powerful media outlooks have taken such liberties and, furthermore, have tried to block or treat as irrelevant (even as non-existent) opposing views to their positions. Their actions inevitably compromise the truths about the healthcare legislation that confront many people of good will; in addition, the justifications offered by the state and its allies in the media misrepresent what the citizenry have the right and the obligation to know about their laws, their Government, and their general welfare that is adversely affected by this legal beast.
This is where Catholic legal theory and the efforts of those of us who still train the new lawyers who will become legislators, administrators, and judges of our human laws come into play. On this website, in my classrooms, and in the lecture halls around the world where I have spoken, I have emphasized time after time the significance about human intelligence comprehending intelligible reality in order to make, follow, and adjudicate norms that protect and further the common good. This approach to the law, legal education, and what both are about is distant from the efforts of our Government and its confederates in their persistent efforts that will likely, in the long harm, do more harm than the good it was supposed to achieve.
Again, I am grateful to Marc and Kevin for their work to demonstrate the reality of the law and its implications on the lives of many who will suffer under it. The so-called reality of the matter as explained by the state in its defense of this problematic legislation is anything but valid; it is, in fact, a reification of what the state thinks is in the best interest of the common good of the American people but is not.
December 19, 2013
A Seasonal Meditation on Catholic Legal Theory
After an absence from this site of two months, I return today with this brief seasonal meditation. For those who wonder where I have been, it can be said that issues of my health necessitating hospitalization for a time and then time-consuming follow-up have been largely responsible for my absence. But now, here I am. May it also be said that I come to do God’s will.
During my time in the hospital, I had the occasion to think and pray about many things, e.g., the meaning of human life and human endeavors—including my own. A subset of this topic intersects the raison d’être of our website, the Mirror of Justice, viz. the development of Catholic legal theory. Since my hospital discharge, I have reread the contributions of many of my friends who offer their thoughts concerning the essence of our common project on these pages in addition to some of my own. A resolution I adopted in the hospital was this: I must return to the matter of investigating what is Catholic legal theory.
But my resolution and current reflection are influenced by the present liturgical season we celebrate in Christendom, i.e., Advent and preparation for the coming of Christ, who came as God and man to save us from our sins. Does this Christian perspective on the state of humanity have something to do with law? I think it does.
While not all sins are something with which the law is or should be concerned (e.g., did someone snitch a Christmas cookie just as they came out of the oven knowing that the cookie chef has stipulated that no cookie is to be eaten until its proper time?), some are. By sin, I mean recognition by the human person that he or she ought to do something, but intentionally does not; in the alternative, the person should avoid something, but of his or her own volition, plunges into the thing’s execution. Surely the nature of some sins intersects the nature of grave crimes and civil offenses with which the law is concerned. In making this assertion I answer the question: does the law address matters of sin? It certainly can, but the manner in which it does is a subject that falls within the scope of legal theory including that which identifies itself as Catholic.
In addressing how the law should respond to these crimes and civil offenses, some legal theories take a pragmatic approach. Others may follow a utilitarian passage. Still others may be influenced by considering the consequences of what is done and what is avoided. But Catholic legal theory, if it is true to its moniker “Catholic,” must consider and explore the moral dimension—this is the natural moral law at work, an essential component of Catholic thinking. Authentic Catholic legal theory must also rely upon objective reasoning that takes the thinker beyond his or her comfort zones—the subjective, if you will. This type of reasoning relies on the intelligence of the human person to comprehend the world, society, and all their intelligible realities that must be objectively, not subjectively, understood.
But that is not all that there is to the motivating force underlying Catholic legal theory. Surely the consideration of the common good—the good of each in the context of the good of all, the suum cuique—is another vital consideration. All these factors are part of the assembly of the essence of Catholic legal theory. They are not the only considerations, but they are critical ones (others would include the concepts of solidarity and subsidiarity). When these components come together, they should necessarily lead to the avoidance of evil and the doing of that which is good, if I may borrow from the Angelic Doctor, Thomas Aquinas.
Much more needs to be said about what I have presented here, but this is a weblog post rather than a treatise. Perhaps one day, we may have a collection of essays that can be published in a volume that is entitled along the lines of: Perspectives on Catholic Legal Theory. But let me suggest one final thought for today, and that is this: these elements of Catholic legal theory which I have cursorily presented here in this post have much to offer society in general, particularly in avoiding the traps of the manifestations of totalitarian democracy—as foretold by people like Jacob Talmon and Christopher Dawson—which seem to be extant in the political and legal fabric of the present day. If one doubts this thesis, we need to re-read the recent contributions of many of my friends here at the Mirror of Justice. But these elements of Catholic legal theory also have something to do with Christ who came to save us from our sins, especially those sins that are also of concern to the law which is and must be a servant, not the master, of the human family and each of its members.
In short, Catholic legal theory has something to offer all persons and their societies that concern salvation in this world. But Catholic legal theory also has something to offer those persons who are equally concerned about the world that is to come.
October 07, 2013
On Coherence and Confusion
Today is the feast of Our Lady of the Rosary, formerly known as Our Lady of Victory. The memorial commemorates the victory of the Holy League against the Ottoman Empire on this date in 1571. The Christian victory over the superior Ottoman forces was an important milestone in preserving, at least for a while, the Christian identity of Europe. Today the Board of Trustees of Loyola Marymount University (LMU) may vote on the whether the university’s health coverage for staff and faculty maintains or jettisons elective abortion coverage. This vote is a different milestone which will substantively affect the Catholic identity of LMU.
Some within the temporal media have chimed in the matter of LMU’s crossroads. For example, yesterday, October 6, 2013, The New York Times in an article by Ian Lovett, entitled “Abortion Vote Exposes Rift at a Catholic University,” begins by mentioning that not three weeks have passed since Pope Francis asserted that the Church is obsessed with abortion, but the author cites the pope with his words, “We have to find a new balance.” The New York Times did not mention that within hours of his La Civiltà Cattolica interview being published and from which these words were taken, the Holy Father addressed the International Federation of Catholic Medical Associations and discussed the matter of abortion in greater depth. If one were truly interested in what Pope Francis has to say about abortion, I would think it relevant to consider in coherent fashion his statements on this, or any, subject so that a brief, perhaps casual remark could be put into its proper context.
In remarks of September 20, Pope Francis exhorted the members of the Catholic Medical Associations to be witnesses and diffusers of the culture of life. Well, this same exhortation should apply to any institution that uses the moniker “Catholic.” As the pope explained, being Catholic entails a great responsibility, in accordance with the Christian vocation to culture, to remind others of the transcendent dimension of human life that bears the divine imprint of God’s creative work. In order not to leave any ambiguity in the meaning of his words, Pope Francis further asserted that, “Every child who, rather than being born, is condemned unjustly to being aborted, bears the face of Jesus Christ, bears the face of the Lord, who even before he was born, and then just after birth, experienced the world’s rejection.”
Coherent explanation is important to the law as it is to presentation of news and opinion. In the law, a segment of the law ought not to be read and applied out of the context of the rest of the same law or laws that relate to the same subject matter under in pari materia. But coherence is also important to informing the public of important matters of general concern that affect the common good, and the issue of abortion is one of these matters. To suggest, as The New York Times does, that matters of “academic freedom” and “social justice” are at stake if the Trustees of LMU discard elective abortion coverage from the health care plan is incoherent and confuses this important decision that goes to the soul of what LMU is and is not. Regarding academic freedom, there is little attention paid to the freedom of LMU to remain true to its Catholic nature. It seems that only the freedom of those who are not faithful Catholics is worth protecting. When it comes to the matter of “social justice,” does “social justice” demand the continuance of the snuffing out of innocent human life? Since 1973, there have been over fifty million abortions attributed to the United States. This is for me, and I am sure for others, a genuine concern about social justice, but this factor is also relegated to important facts not worth mentioning by some in the temporal media.
If today’s vote is a “symbolic battle for the university’s soul” as The New York Times suggests about the LMU vote, then perhaps Our Lady of Victory will bless her faithful sons and daughters at LMU with the wisdom necessary to confront the challenges of this struggle which are more than symbolic.
October 05, 2013
So What Is Papa Bergoglio Really Saying
Once again another Pope Francis interview hits the temporal media with the La Repubblica interview written by Eugenio Scalfari, a well educated man who left the Church but desires to engage the Holy Father. It is clear from the La Repubblica publication that the Pope's comments were not recorded digitally or in notes but in a mental reconstruction by Senor Scalfari. Once again, the temporal press is taking elements of the interview out of a much deeper context so their selective emphases distort what the Pope actually said, some of which has a bearing on juridical and ecclesial issues, particularly the social teachings of the Church which are of interest to many in the Mirror of Justice community.
The United States Assistancy has an interesting publication called the "Studies in the Spirituality of Jesuits." The current issue, which came out today, has the first of a two-part publication of some of Father Bergoglio's writings as Jesuit Provincial and formator. These writings are translated and edited by Father Philip Endean, SJ of the British Province. Philip and I are friends even though we don't always agree on certain points. But agreement on everything is not essential to authentic friendship. Father Endean has done an important service in this translation project by showing what underpins the contemporary expressions of Pope Francis that are hitting the press today. I have just read the first installment of the translations of some of the early Bergoglio writings, and the contrast on some matters between Father Ratzinger and Father Bergoglio appear from time to time. But what demonstrates a union of the minds of this two men who became the Vicar of Christ is their mutual concern about sin, salvation, and elitism or self-referentialism.
The Assistancy has kindly made Father Endean's most helpful work available HERE . I am confident that readers will find Father Bergoglio's past words informative and indicative of who he is and where he's going.