Mirror of Justice

The South Dakota abortion case

Emily Bazelon writes here, at Slate, about South Dakota's "unbelievable" abortion law which, among other things, "requires doctors to give patients who come for an abortion a written statement telling them that 'the abortion will terminate the life of a whole, separate, unique, living human being.'"  "If you care about doctors' freedom of speech," she writes, "or their responsibility to give accurate information to patients, the South Dakota statute looks pretty alarming."

I'm not sure what to think about the free-speech objection.  It seems to me that all kinds of reasonable, easily justifiable regulations of the practice of medicine are going to involve requiring doctors to communicate some information to patients and forbid them to say some things to patients.  The free-speech objection, then, appears to piggy-back on the "accurate information" objection.  So, is it, or is it not, the case that an abortion "terminate[s] the life of a whole, separate, unique, living human being"?  Well, the statute in question defines "human being" as "an individual living member of the species Homo sapiens, including the unborn human being during the entire embryonic and fetal ages from fertilization to full gestation."  Bazelon thinks this is just cheating; is she right?

Here's the key paragraph of her piece:

But what's more distressing, because the majority's reasoning is so strained, is the assertion that by defining a phrase one way, a state can erase its ambiguity and the variety of perceptions people bring to it. It's one thing to say—as the case law the majority relies on here does—that a statutory definition binds judges and their interpretation of language. It's another entirely to say that when doctors tell women they are carrying a human being, that women will think, Oh, right, that means only the long, convoluted thing that the state says it does. Most patients won't think that, because they won't necessarily define "human being" the way the statute does. As Yale law professor Robert Post says in a 2007 article (PDF) in the University of Illinois Law Review, "If South Dakota were to enact a statute requiring physicians to inform abortion patients that they were destroying the 'soul' of their unborn progeny, and if it were explicitly to provide in the statute that 'soul' is defined as 'human DNA,' the evasion would be obvious." Instead, South Dakota has co-opted human being and attached its own meaning to it.

I was intrigued by the use of the word "co-opted."  Did the legislature really "attach it's own meaning" -- some kind of strange, esoteric, secret-knowledge meaning?  It strikes me that the objections to the statute reflect a worry that, by requiring doctors to remind women contemplating abortions that unborn children are "human beings", the law might make complicate the decision to end these human beings' lives.

"Thou Shalt Not Annoy" at WYD 2008

World Youth Day 2008 is being held this summer in Sydney, Australia.  According to the event's official web site, "[o]rganised by the Catholic Church, WYD brings together young people from around the globe to celebrate and learn about their faith on a more regular basis.  WYD08 will be the largest event Australia has ever hosted. It will attract over 125,000 international visitors - more than the 2000 Olympics.  WYD08 will mark the first visit of His Holiness Pope Benedict XVI to Australia."  (During the pontificate of Pope John Paul II, these events were huge, and quite formative, I'm told, for many young Catholics.)

Well, if you put on a big Catholic jamboree, with the Pope in attendance, in a free country, you are going to stir up conversation, debate, disagreement . . . and some protest (some of it, no doubt, malicious and offensive).  And so, local authorities have enacted a new, temporary set of regulations that "will allow police to arrest and fine people for 'causing annoyance' to World Youth Day participants."  In response, as this headline puts it, "Catholics are split on [the] freedom to annoy":

[The] prominent Catholic priest and lawyer Frank Brennan has condemned new police powers for World Youth Day as a "dreadful interference" with civil liberties and contrary to Catholic teaching on human rights.

Any thoughts?  What free-speech rule or principle (if any) should control this situation, and others like it?  I tend to be a free-speech libertarian, even though I'm uncomfortably aware that a lot of libertarian free-speech rhetoric rings hollow.  Would those who object to the "don't annoy" rule object as strongly if the event in question were not World Youth Day but some other, perhaps more "progressive", group?  Readers might want to check out this post, at the Commonweal blog (where I got the story) and also the comments.

Assisted suicide in Germany

The New York Times reports on a recent doctor-assisted suicide in Germany, by an elderly woman who was not ill:

Ms. Schardt, 79, a retired X-ray technician from the Bavarian city of Würzburg, was neither sick nor dying. She simply did not want to move into a nursing home, and rather than face that prospect, she asked Mr. Kusch, a prominent German campaigner for assisted suicide, for a way out.

Her last words, after swallowing a deadly cocktail of the antimalaria drug chloroquine and the sedative diazepam, were “auf Wiedersehen,” Mr. Kusch recounted at a news conference on Monday.

It was hardly the last word on her case, however. Ms. Schardt’s suicide — and Mr. Kusch’s energetic publicizing of it — have set off a national furor over the limits on the right to die, in a country that has struggled with this issue more than most because of the Nazi’s euthanizing of at least 100,000 mentally disabled and incurably ill people.

Not that the Times wants to be judgmental.  After all . . .

While Ms. Schardt was not suffering from a life-threatening disease, or in acute pain, her life was hardly pleasant, Mr. Kusch said. She had trouble moving around her apartment, where she lived alone. Having never married, she had no family. She also had few friends, and rarely ventured out.

In such circumstances, a nursing home seemed likely to be the next stop. And for Ms. Schardt, who Mr. Kusch said feared strangers and had a low tolerance for those less clever than she was, that was an unbearable prospect.

You know, I joke sometimes that some "less clever" people's remarks make me "want to kill myself" . . . but, it's a joke.

Meanwhile, a push for "death with dignity" in Washington.  Don't worry, though . . . Oregon's "safeguards work."

California's death penalty "dysfunctional"

Story here: 

The California death penalty system, plagued by backlogs in appeals that routinely delay executions by more than two decades, is "dysfunctional" and in danger of collapse, a state commission concluded Monday.

The report by the California Commission on the Fair Administration of Justice offered a blistering indictment of the system, saying the state has fostered a "disrespect for the rule of law and weakened any possible deterrent benefits of capital punishment."

In the state that maintains the largest death row — currently 669 condemned inmates — the report determined that California could save up to $100 million a year by abolishing the death penalty. Yet the 22-member panel stopped short of recommending its elimination.

"Although outright abolition would be the cleanest, most definitive approach to death penalty reform … we recognize that, ultimately, a political judgment must be made about whether the time is right to seek a fresh electoral choice on whether California ought to have a death penalty," the report said.

Sen. McCain's response on faith-based programs

We've been talking about Sen. Obama's recent speech, in which he endorsed the pre-Bush version of the faith-based initiative, and also about the reservations many religious-freedom advocates do and will have about the proposed roll-back of protections for organizations that hire for religious mission.  Here, for what it's worth, is a short response issued by Sen. McCain: 

John McCain supports faith based initiatives, and recognizes their important
role in our communities. He has cosponsored legislation to foster improved
partnerships with community organizations, including faith-based, to assist
with substance abuse and violence prevention. He also believes that it is
important for faith-based groups to be able to hire people who share their
faith, and he disagrees with Senator Obama that hiring at faith-based groups
should be subject to government oversight.

If Sen. Obama could persuade his fellow Democrats to drop their insistence on applying the same non-discrimination norms that (appropriately) bind the government to religious organizations that engage, with some help from public funds, in providing social-welfare services, he truly would have helped to "turn a page" in our politics.

Who's the Catholic-vote "natural"?

It has been suggested that Sen. Obama is a "natural" for the Catholic vote.  Ryan Anderson argues here that, in fact, the Catholic-vote "natural" is Sen. McCain.  And around we go . . . .

Justice Breyer and the "culture wars"

Orin Kerr has an interesting post, at the Volokh Conspiracy, comparing Justice Breyer's opinions in the school-voucher and gun-control cases.  In the former, remember, Justice Breyer concluded that, even conceding that the relevant legislature could reasonably have thought there were good policy reasons for school choice in Cleveland, the threat of "political divisiveness along religious lines" was too great, and so the voucher program was unconstitutional.

Contrast Breyer's Zelman dissent with his dissent in Heller. Here, the polarity of the culture wars has been reversed. And so has Justice Breyer's approach: Now he reasons that the possibility of a positive social impact of the law makes it constitutional. The political philosopher of Zelman is replaced with a careful and cautious social scientist who runs over pages and pages of statistics and scientific studies in Heller. So long as the legislature had a possible basis for thinking that restricting the constitutional right was a good idea, Breyer explains, the law should be upheld . . .

It's an interesting mirror image, I think. When the culture wars pointed one way, Justice Breyer thought that a "risk" of a "potentially harmful" adverse result was enough to strike the law down. When the culture wars pointed in the other direction, so did the burden of proof: now Justice Breyer must have his "confidence" in the reasonableness of the legislature "convincingly" "destroyed" before he would vote to strike down the law.

  To be clear, I'm not suggesting that Justice Breyer is alone in taking different approaches depending on which side of the culture wars the challenged law happens to fall. Plainly he is not. At the same time, I do think the contrast between these two dissents provides an unusually clear case of the difference.

All the more reason to think (as I've argued) that judges should not decide constitutional cases on the basis of predictions about "divisiveness".

"Methodist Retreat Against Gays"

"Civil Union Dispute Pits Methodist Retreat Against Gays Who Aided in Its Rebirth," announces the headline of this New York Times piece.  The "Ocean Grove Camp Meeting Association" does not want to permit "civil union ceremonies from taking place on its property."  And so, it is being investigated by the state's Division on Civil Rights.  More:

Since 1989, Ocean Grove’s beach, boardwalk and oceanfront road have received tax-exempt status under the New Jersey Department of Environmental Protection’s Green Acres Program, which was created to encourage use of privately owned space for public recreation and conservation. In its original application for the exemption — which saves the group about $500,000 a year and is up for renewal on Sept. 15, according to Bernard Haney, the Neptune Township tax assessor — the association noted that the properties were open to the public and that the pavilion had been used by outside groups.

Some see an inherent conflict between the association seeking tax-exempt status as a public open space with one state agency while suing another state agency for violating its rights as a private religious group.

This story suggests, it seems to me, that it is not unreasonable to be uneasy about, at the very least, the future tax-exempt status of religious institutions that refuse to assimilate same-sex relationships and marriages.

Babies and Europe's future

An interesting read -- "No Babies?" -- in the Times magazine this weekend.  A bit:

There is no shortage of popular explanations to account for the drop in fertility. In Athens, it’s common to blame the city’s infamous air pollution; several years ago a radio commercial promoted air-conditioners as a way to bring back Greek lust and Greek babies. More broadly and significant, social conservatives tie the low birthrate to secularism. After arguing for decades that the West had divorced itself from God and church and embraced a self-interested and ultimately self-destructive lifestyle, abetted above all by modern birth control, they feel statistically vindicated. “Europe is infected by a strange lack of desire for the future,” Pope Benedict proclaimed in 2006. “Children, our future, are perceived as a threat to the present.”

Sigh.  Does the writer really think the Pope is thinking, "I feel statistically vindicated!"  This will likely ring true to many MOJ-ers:

The broad answer to the “Where are all the European babies?” question thus begins to suggest itself. Accompanying the spectacular transformation of modern society since the 1960s — notably the changing role of women, with greater opportunities for education and employment, the advent of modern birth control and a new ability to tailor a lifestyle — has been a tension between forces that, in many places, have not been reconciled. That tension is perfectly apparent, of course. Ask any working mother. But some societies have done a better job than others of reconciling the conflicting forces. In Europe, many countries with greater gender equality have a greater social commitment to day care and other institutional support for working women, which gives those women the possibility of having second or third children.

But then, a twist:

one other factor affecting the higher U.S. birthrate stands out in the minds of many observers. “There’s much less flexibility in the European system,” Haub says. “In Europe, both the society and the job market are more rigid.” There may be little state subsidy for child care in the U.S., and there is certainly nothing like the warm governmental nest that Norway feathers for fledgling families, but the American system seems to make up for it in other ways. As Hans-Peter Kohler of the University of Pennsylvania writes: “In general, women are deterred from having children when the economic cost — in the form of lower lifetime wages — is too high. Compared to other high-income countries, this cost is diminished by an American labor market that allows more flexible work hours and makes it easier to leave and then re-enter the labor force.” An American woman might choose to suspend her career for three or five years to raise a family, expecting to be able to resume working; that happens far less easily in Europe.

So there would seem to be two models for achieving higher fertility: the neosocialist Scandinavian system and the laissez-faire American one. Aassve put it to me this way: “You might say that in order to promote fertility, your society needs to be generous or flexible. The U.S. isn’t very generous, but it is flexible. Italy is not generous in terms of social services and it’s not flexible. There is also a social stigma in countries like Italy, where it is seen as less socially accepted for women with children to work. In the U.S., that is very accepted.”

Interesting.

Churches and Sprawl

Eduardo raises some interesting questions in his post, "Churches and Sprawl."  Among other things, he asks:

Would it make sense for the Church to impose a moratorium on opening new suburban parishes in an effort to avoid encouraging Catholics to move out to places where they are guaranteed to spend a lot of time driving?

As Eduardo himself notes, I suspect that, in the Catholic case, parishes are following people.  And, once Catholics are in the suburbs, it would be kind of, well, un-Catholic to tell them that they have to drive to "their" parishes for the sacraments.  Still, I'm a partisan for cities, and think the Church *does* have a role to play here.  It will not likely surprise any MOJ readers to learn that, in my view, the Church could help reduce sprawl by investing in urban Catholic schools.

The Death Penalty and Deterrence

Check out this op-ed by Cass Sunstein and Justin Wolfers on the death penalty and deterrence.  (We've discussed -- here and here, for example -- Sunstein's claims about these matters before here at MOJ.)  Here's the basic point:

A prominent line of reasoning, endorsed by several justices, holds that if capital punishment fails to deter crime, it serves no useful purpose and hence is cruel and unusual, violating the Eighth Amendment. This reasoning tracks public debate as well. While some favor the death penalty on retributive grounds, many others (including President Bush) argue that the only sound reason for capital punishment is to deter murder.

We concur with Scalia that if a strong deterrent effect could be demonstrated, a plausible argument could be made on behalf of executions. But what if the evidence is inconclusive?

We are not sure how to answer that question. But as executions resume, the debates over the death penalty should not be distorted by a misunderstanding of what the evidence actually shows.

I agree.  And, I think this is advice that those who write on crime and punishment for the Catholic bishops should take to heart.  That is -- as I explain here -- I worry about pastoral teaching on capital punishment that makes too much depend on contestible claims about deterrence.

A blog of interest

I came across a blog -- one that was new to me -- that might be of interest to MOJ readers.  "Libertas et Memoria" is "a blog on law, politics, faith, culture and the joys of the Inland Northwest."  Check it out.

The Court's death-penalty case

Today, in Kennedy v. Louisiana, the Supreme Court invalidated a state law which authorized the death penalty for aggravated child-rape.  Justice Kennedy, writing for a 5-4 Court, concluded that the death penalty is unconstitutional except in cases involving what he called “the worst of crimes, those that, in the case of crimes against individuals, take the victim’s life.”  (He left open, in other words, the possibility of the death penalty for non-homicide claims "against the state").

I'm sure that much will be made of the fact that four of the Court's five Catholics were in dissent.  I do not believe that the question whether the *U.S. Constitution* authorizes the death penalty for aggravated child-rape is answered by Church teaching, though.

Clearly, today's decision is consistent with the Court’s approach in recent death-penalty cases.  It is widely thought, that the Supreme Court overreached, in the early 1970s, when it attacked the death-penalty head-on.  Today, the Court majority’s approach is instead to focus on limiting the death penalty’s reach – for example, by invalidating its use in cases involving developmentally disabled or juvenile offenders. 

In his decision, Justice Kennedy emphasized not only the legislative trends and sentencing practices in the states – concluding that they suggested a consensus against the death-penalty for child-rape – as well as the Court’s own moral judgment about the purposes of punishment.  The Justices conceded that, of course, the rape of a child is a depraved act and even admitted that there are "moral grounds for questioning" a rule that limits the death penalty to homicide crimes.  (I agree.)  Still, the majority concluded that our "evolving standards of decency" and the principle of proportionality in punishment, preclude the use of the death penalty in child-rape cases.

As I wrote here, several years ago, after the Court's decision involving the death penalty for developmentally disabled offenders -- and here, after the no-executing-juveniles case -- this case presents (for me) an opportunity for one cheer (I oppose the death penalty) but not three.  Our Constitution has much more to say about the processes of the criminal law – search-and-seizure, interrogation, jury trials, and so on – than about the substantive problem – which is inescapably a moral problem – of justifying punishment.  The Court’s death-penalty cases are one of the relatively few arenas in which we see the Justices grappling with the fascinating, challenging questions of moral desert, deterrence, and state power.  At the same time, as the dissenters in today’s case reminded us, our Constitution for the most part leaves the hard work of assigning blame and meting out punishment to legislatures and juries.  The challenge for the Court is to enforce carefully the Constitution’s safeguards and limits without overstepping, and improperly substituting its own views for that of the People and their representatives.

In this case, it seems to me,

even an observer who opposes – as I do – capital punishment could have some reservations about Justice Kennedy’s methodology, about his understanding of the judicial role, and about some of the factors on which he and the majority relied in reaching their conclusion.  Even some who believe that the death penalty is not morally justified will question the Court’s view that the Constitution has removed from legislators the decision whether or not to authorize capital punishment in cases of aggravated child-rape.  That said, today’s decision is clearly consistent with the Court’s recent precedents, and has the merit of affirming, for death-penalty purposes, a relatively clear constitutional line between homicide crimes and other serious offenses.  It is clear that a majority of the Justices are uncomfortable with capital punishment as a general matter.  However, today’s decision confirms that these Justices have decided that it is better course to cabin and constrain capital punishment than to aggressively impose a death-penalty ban.  Even though today’s decision limits the reach of the death penalty, it leaves the general debate about capital punishment, and the question whether the death penalty is sensible policy or morally defensible, in the hands of the public.

Save D.C. Catholic schools!

It looks like the House has decided to let the D.C. voucher program survive another year; however, "Congressional Democrats seem ready to eliminate the $14.8 million program entirely in 2009. 'This year’s bill is essentially a placeholder in this debate,' said Rep. José E. Serrano, a New York Democrat who chairs the appropriations subcommittee on financial services. 'I expect that during the next year the District leaders will come forward with a firm plan for either rolling back the program, or providing some alternative options.'"

More:

Hopes are high that the attrition of schools from the D.C. parochial system has ended — but that will require Congressional action in the very near future. “I’d be very surprised if Democrats in Congress turn their backs on the inner-city poor in D.C.,” Father Nuzzi observes, “given the impact the program has made.”

But it’s a very real possibility. While the D.C. voucher program has earned the support of local leaders like Mayor Adrian Fenty and former mayors Anthony Williams and Marion Barry (now a member of the city council), Congressional Democrats remain opposed to the program. If they vote to eliminate vouchers next year, more inner-city Catholic schools may have to close their doors, regardless of archdiocesan efforts to keep them open.

Says the Fordham Foundation’s Petrilli: “Losing vouchers would be a hit for Catholic schools. And it would be bad news for everyone.”

This presents a great opportunity, it seems to me, for a "change" Democrat, who is friendly to faith and reform, to break ranks with tired anti-choice ideologies.  Anyone?

St. Thomas More and the Constitution

Some interesting, and timely, thoughts, from the Vox Nova blog, on St. Thomas More and the judicial role.  Check it out.

Robert Rodes on Same-Sex Marriage

Congratuations to my colleague, Prof. Robert Rodes, whose essay, "On Marriage and Metaphysics", has been named the "Best Scholarly Essay" by the Catholic Press Association.  More here.  And, here is a link to the paper.

Enhancement Biotechnology and the Natural Law

At the First Things blog, Ryan Anderson and Christopher Tollefsen have posted reflections about a natural-law approach to enhancement-biology questions.  It will definitely be of interest to MOJ readers.  A taste:

What might a natural-law appraisal of biotechnological enhancement look like? Much of modern ethics, especially when applied to biotechnology, springs from emaciated views of human nature. In response, a sound natural-law approach would need to begin with a twofold account of the nature of the human person.

The first part would be descriptive: Human persons must be shown to be human animals—bodily organisms of the species Homo sapiens. And the second part would be normative: Human persons must be shown to be fulfilled by certain ends and harmed by others. Both animality and rationality shape and define the constitutive aspects of our well-being, and critical reflection can identify the various goods that truly perfect us. . . .

Thoughts?

"The Catholic Thing"

A new (to me, anyway) blog, which might be of interest.

"The Greening of Planned Parenthood"

It's a common phenomenon, the marketing of everyday products as "green" (even when it is not entirely clear the product is environmentally friendly).  Now, Planned Parenthood is getting in on the act, as Kathryn Lopez describes:

Don't look now, but as the business Planned Parenthood is in (unrestricted abortion) becomes less popular, the abortion leader aims to distract. Cover will be provided by the Church of the Green: In Massachusetts, plans are for a “green” clinic, made of recycled and other environmentally friendly materials.

Dianne Luby, president of the Bay State branch tells the Wall Street Journal: “we’re trying to reposition ourselves as caring about their health, about prevention, about a sustainable planet.” She wants the abortion provider to be “much more mainstream.” . . .

. . .  Planned Parenthood is a booming business. The Journal article this morning reports that PP took in $1 billion in its last financial report. According to the piece, about a third of that revenue comes from federal and state grants for low-income women. “The nonprofit ended the year with a surplus of $115 million, or about 11% of its revenue, and net assets of $952 million.”

Why is Planned Parenthood receiving federal funds, you ask? Excellent question. Planned Parenthood received some $305.3 million in government funds in the 2005-06 fiscal year.

"Selective respect" for the Church?

In the New York Times Magazine, discussing anti-Muslim and anti-immigrant views in Europe, my friend Noah Feldman writes, in "The New Pariahs?":

Certainly it is reasonable for free societies to encourage immigrants to adopt their own liberal values. A Dutch requirement that potential immigrants view a film depicting topless bathers and gay couples may seem a little childish, but it is not a human rights violation, and it may even help prepare immigrants for the different world they are poised to enter. Schools should teach the values of the surrounding society, including respect for different lifestyles. Nevertheless, a hallmark of liberal, secular societies is supposed to be respect for different cultures, including traditional, religious cultures — even intolerant ones. There is something discomfiting about a selective respect that extends to the Roman Catholic Church, with its rejection of homosexuality and women priests, but excludes Islam for its sexism and homophobia.

I'm not sure how much "respect" the Church gets in Europe these days, but let's put that aside.  Let's put aside also the question whether the Church's "rejection" of women priests is usefully compared to (what appear to be) the practices and views with respect to women and their role in society of traditionalist Muslims.  It seems a mistake to overlook the fact that "Islam" is, for some Europeans, a matter of concern not simply because of its "sexism and homophobia", but because of (what seems to be) these Europeans' concerns about religiously motivated violence.  To be sure, it could be the case that some Eurpeans (and Americans) are unfairly attributing to all or most Muslims the bad acts and unsound views of a few.  Still, I think there's more going on here than just a prejudiced lack of comfort with newcomers.

Celebrating some saints!

June 22 is the feast day of both St. John Fisher and St. Thomas More, both of whom are, I expect, admired by, and inspiring to, many MOJ readers -- not only for the obvious reason (More and lawyers), but because of their courageous stands for the freedom of the Church as against the overreaches of the "state".

Don't forget, though, June 23, which is the feast day for, inter alia, St. Thomas Garnet, an English Jesuit who was martyred 400 years ago this year, after being tortured by officials seeking information about his uncle, Fr. Henry Garnet, S.J.  Garnet was told his life would be spared if he took the Oath of Allegiance, but he refused.  He was executed at Tyburn, insisting that he was "the happiest man this day alive."  (As it happens, June 23 is also the birthday of my son, Thomas Garnett.  And, as it happens, St. Thomas Garnet's father -- Richard Garnet, Henry's brother -- was expelled from Balliol college, thus ending his hope for an academic career, after a statue of the Blessed Mother was found in his rooms.)

C

God is great

I don't really have a Catholic Legal Theory hook for this, but I cannot help it.  My uncharacteristic (but, perhaps, welcome?) blogging silence during the past few days is a result of a just-concluded trip to Arizona with my son.  It's quite something, watching a 7-year-old's face when he sees the Grand Canyon for the first time:

Eduardo's "Land Virtues"

For what it's worth, I wanted to offer an enthusiastic "second" to the suggestion that MOJ readers take a look at Eduardo's recent paper, "Land Virtues", which I was (finally) able to read closely.  It's first-rate -- careful, thoughtful, timely, interesting.  Congratulations to Eduardo.

"Sorry, good friend[]"

In his Chicago Tribune piece, to which Michael linked, describing glowingly his meeting with Sen. Obama, Prof. Doug Kmiec writes:

The discussion dwelt at some length on abortion. Obama said he earnestly wants to "discourage" the practice—despite the distortions of some who think if they affix the "pro-abortion—won't overturn-Roe-label" to the senator, pro-lifers like myself won't give him the time of day. Sorry, good friends, not this year.

It's no secret that, despite my longstanding affection for him, I've been, so far, unimpressed by Doug's efforts to explain how and why it is that someone who has spent decades writing and saying what he's been writing and saying -- particularly on questions of constitutional law -- has suddenly transferred his affections from Mitt Romney to Barack Obama.  This latest piece, and the passage quoted above, don't help matters much (for me).

The point that some of us have been making to Doug is *not* that it is impossible for someone who supports Roe to also have a good-faith desire to "discourage" abortion.  It is, instead, that Sen. Obama's record, and his public statements to people who, unlike Doug, very much want to hear him offer -- and *do* hear him offer -- his full-throated, unqualified support for abortion rights, do not seem to provide a basis for concluding that, in fact, he would be willing to do anything to "discourage" abortion, other than to support social-welfare initiatives which he would support in any event.  (The point here is *not* to criticize such programs -- if they work, fine [Which reminds me, has Obama endorsed 95-10 yet?].  It is to remind Doug that these programs and efforts will come packaged with a roll-back of the few pro-life legislative and executive-branch victories that have been secured during the past decade or so.) 

Abortion aside, the judges that Sen. Obama will nominate (and that the Senate will certainly confirm) will bring an understanding of constitutional law to the Court that is entirely irreconcilable with the vision that Doug has been advocating for years.  Again, it's not just about Roe.  I'd like to hear Doug's account of why it suddenly no longer matters that justices approach constitutional interpretation as he has, for many years, been saying they should approach constitutional interpretation. 

But, back to abortion:  even if it is true -- of *course* it is true -- that overturning Roe would not end abortion, and that there are ways to reduce the number of abortions that do not involve overturning Roe -- and even if we accept, as I do, that many reasonable, faithful Christians will conclude, given the givens, that their best option is to vote for Obama, the *fact* is that President Obama will sign legislation and issue executive orders that remove currently existing regulations, that undermine conscience-protections and religious-freedom protections for hospitals and health-care professionals who do not wish to participate in abortion, and that use public funds to pay for abortions and embryo-destroying research.  This is not just about Roe, and Doug knows it.  Perhaps there are "distortions" going on, but, with all due respect, they are not coming from those who report accurately Sen. Obama's publicly expressed views and record on abortion.  "Sorry, good friend[]."

Tim Russert: A Catholic in America

A really nice essay, by Jon Meacham, about Tim Russert and the Faith. Check it out.

CLT and Boumediene

A few thoughts with respect to Rob's two posts, and Michael's, on the question whether we, or CLT, really have anything useful or illuminating to say about the decision and questions presented in Boumediene.

First, it strikes me as quite unlikely that any particular separation-of-powers arrangement is required by Catholic teaching.  It seems a stretch to think that, say, Catholic teaching dictates, with any specificity, the reach of the federal courts' jurisdiction or the content of the judicial power vested in the Court by Article III.  Yes, of course, we can find support in Church teaching for human-dignity-promoting rule-of-law norms -- and a meaningfully independent judiciary would certain seem necessary for the vindication of such norms -- but I don't think the passages Rob [Correction:  Albert Brooks, who wrote in to Rob] cites put to rest concerns one might (in my view, should) have about Justice Kennedy's opinion, its premises about judicial power, and whether the majority responsibly (or constitutionally) exercised that power, in striking down portions of two acts of Congress without providing meaningful guidance to lower courts and legislators going forward. 

Next, we all agree that the Church's teachings rule out torture.   That torture is immoral, and should also be illegal, does not answer questions about, say, the sufficiency of the review-process at issue in Boumediene, or about the meaning of the Eisenstrager precedent -- a meaning which, one could reasonably think, the majority evaded, without admitting as much.

That the four dissenting Justices are -- like Justice Kennedy -- Catholic does not suggest to me (as it perhaps does to Rob '[correction:  Mr. Brooks]) that they missed or ignored their obligations as Catholics.  (Nor do I necessarily take their dissents as reflecting a conscious application of Catholicism-inspired rule-of-law values in the case at hand.)  The Faith does not tell us how far the Great Writ reached at the Founding, or how much process is required to substitute adequately for the writ, or whether, in a case like this, where the Executive and Congress are on the same page and therefore, at least since Youngstown, have enjoyed judicial deference, it is appropriate for the Court to nevertheless announce -- without, again, providing much guidance for the future -- that their joint determination is constitutionally invalid.  I am inclined to think, that the Faith neither requires nor authorizes willful judging, even in the service of, on balance, wise and humane policies.  The dissenters, on my reading, are reacting to what they perceive as willful judging; they are not dissenting from Catholic teaching.

The death penalty for child rape

In response to Michael's question:  First, and contra Bob Abernethy, there is next-to-no chance that the Court is going to "expand the death penalty" in the Louisiana child-rape case.  The trend in the Court's death-penalty case-law is clearly in a narrowing, not an expanding, direction.  Second, in the transcript which Michael posted, several speakers fail -- as so many do, unfortunately -- to distinguish between "retribution", properly understood, and "revenge" or "vengeance."  "Retribution" is an important -- indeed, the crucial -- purpose and justification (and limiting consideration) of punishment; "revenge" has no place in criminal justice.  That "vengeance is mine, saith the Lord" has little to do, it seems to me, with the question whether or not "retributive" punishments are justified.

The question, it seems to me, is not whether the death-penalty for child-rapists is "retribution" -- all justified punishment is "retribution" -- but whether, all things considered, it is justifiable (and if so, whether it is wise policy) to execute child-rapists.  In my view, it isn't.  That said, I do agree with those who criticize the Court's decision in Coker for failing to take seriously the harm that rape causes (re-read Justice White's opinion, and cringe), and I also have no doubt that many who rape are animated by a more blameworthy state of mind than many who commit homicide.

Tim Russert, R.I.P.

Here is a link to his commencement talk at Notre Dame, in 2002.  A good man.  God bless him.

Judith Warner is insane

Read this.  And worry.  Nutshell version:  Evangelical dads who would rather their daughters not be sexually promiscuous are kinda -- just kinda, mind you -- like dads who imprison their daughters in dungeons and rape them for decades.  Words fail.

A quick response to Eduardo

I am (pretty much) on the same page as Eduardo with respect to his recent post on sprawl and housing-development patterns.  Two quick (and, I think, friendly) amendments. 

First, in order to compare the cost (to the owner, putting aside externalities) of suburban v. urban housing, it is true (as Eduardo says) that we need to factor in the cost of transportation.  We also need, though, to factor in the fact that, in most of our metropolitan areas, urban public schools are lousy.  (Perhaps this would change, if many suburbanites moved back to the cities.)  The point is just that, at least in the short run, a move back to the city is likely -- not guaranteed, but likely -- to entail either financial costs (for private schools) or other opportunity costs.

Also, I think it needs to be a part of this conversation that, these days, the typical suburb-dweller is no longer (necessarily) commuting from a radial suburb to an urban job.  Suburb-to-suburb commutes are just as common, I'm told.  So, it is not the case that suburb-dwellers could simply move in, and thereby drive less. They might well be moving *away* from the job (in the suburban office park).

Kmiec on Catholics, abortion, the Court, and the election

I saw my old friend Doug Kmiec on campus at Notre Dame today, which reminded me that I needed to grumble a bit about his most recent "Catholic Online" column, in which he discusses (again) the much-discussed question, "for whom should Catholics who embrace the Church's teachings on abortion vote?"

First, the (unfortunately) obligatory preface:  Neither Doug Kmiec nor anyone else should (or, I would think, may) be denied communion merely for supporting Sen. Obama's campaign rather than Sen. McCain's.  And, it is, I take it, the case that faithful Catholics can -- and many do -- believe that, given all the givens, the right course is to support Sen. Obama (or Sen. McCain) over Sen. McCain (or Sen. Obama).  In this context, I think we have (and Doug has) the "right to be wrong".

That said, Doug's column goes off course in a few places, I think.  He writes:

Given that abortion is an intrinsic evil without justification, thinking the overturning of Roe “solves” the abortion problem, when it does not, can mislead Catholics into the erroneous conclusion that any candidate unwilling to pledge reversal of Roe is categorically unworthy of support.

Yes and no.  True, overruling Roe does not, by a long shot, "solve" the abortion problem.  It would, however, do two very important things:  (a) It would solve another, serious, problem -- namely, it would undo the major error that was Roe, thereby improving the state of our constitutional law (about which Doug cares quite a bit); and (b) it would make it possible for We the People, acting through our legislatures, to take measures that might, bit by bit, "solve" the abortion problem.  The fact that overturning Roe does not, by itself, end abortion does not change the fact that the persistence of Roe effectively removes abortion from the arena of legislative (even if only incremental) action and compromise.  Doug writes:

Senator Obama’s position accepts the existing legal regime which leaves the abortion decision with the mother as a “constitutional right.” Senator McCain's position would leave the decision with the individual states. Neither position is fully pro-life, both are pro-choice, with the former focused on the individual and the latter focused on the right of the states. Senator McCain's position is sometimes described as pro-life, but in truth, it is merely pro-federalism (states being free under the McCain position to decide to permit or disallow abortion as they see fit).

But this is not quite right.  Sen. McCain's position is not (merely) pro-"the right of the states" or pro-"federalism"; it is pro-"the right of the People" to try to promote the common good through law.  Sen. McCain, unlike Sen. Obama, also supports a wide range of federal policies that regulate abortion and protect the consciences of pro-life citizens.  Doug continues:

Independent of my Catholic faith, as a constitutional law teacher, I respectfully disagree with both Senator Obama and Senator McCain since the Constitution was intended as a means to enforce and guarantee the unalienable right to life recited in the Declaration of Independence, where of course it is explicitly traced to our Creator. Since neither candidate presents a position fully compatible with Catholic teaching recognizing abortion for the intrinsic evil that it is, Catholic teaching asks us to work for the reduction of the incidence of abortion through the most prudent way possible.

I am also a constitutional-teacher and, independent of my Catholic faith, I think that the Constitution probably does not, in fact, require governments to outlaw or regulate abortion.  In any event, it *is* compatible, it seems to me, with Catholic teaching to have the view (as McCain does) that the Constitution permits (but does not require) We the People to legislate in accord with Catholic teaching, by regulating abortion (and banning capital punishment, and welcoming immigrants, etc., etc.).  And, even if one thought that McCain's view was not "fully compatible" with Catholic teaching, it is not clear why one should regard him as, in effect, in a "tie" with his rival, whose views on *this* question seem quite *in*-compatible with Catholic teaching.  Doug then says:

There is no single answer on the most effective manner to reduce abortion either. My experience, and that of others whom I greatly respect for their tireless efforts in parish work and with Project Rachel and Catholic pregnancy centers, suggest that Senator Obama’s emphasis on personal responsibility (conveying especially to young people the need to understand the maturity and commitment needed for sexual intimacy) is the course most likely to make a difference.

This statement surprises and disappoints.  One gets used to pro-abortion-rights advocates tossing around the charge that pro-lifers are single-mindedly focused on legal prohibitions (or only on the welfare of unborn children) rather than on in-the-trenches outreach to the needy and vulnerable but, as Doug knows full well, this is an unfair caricature.  *Of course* those of us who oppose abortion should engage in these "tireless efforts" and emphasize "personal responsibility".  It hardly follows that we shouldn't care about fixing (or, at least improving) the law, or should be indifferent to the prospect that, under President Obama and Speaker Pelosi, the laws of the Nation will almost certainly move dramatically in a pro-abortion-rights direction.  Finally, Doug writes:

it is my own conclusion that Senator Obama would be more open to these considerations since he is more dedicated toward reducing the partisanship of the past, has very responsibly and very consistently called upon our better natures, and has articulated -- long before he sought the presidency -- a genuine appreciation for the importance of faith in the public square.

Here, I suppose there's not much to say.  I do not believe the *evidence* supports the conclusion either that Sen. Obama is less "partisan[]" than Sen. McCain or that Sen. Obama appreciates more than does Sen. McCain "the importance of faith in the public square."  (I have, I realize, publicly endorsed McCain, and so might be suspect here, but it seems worth recalling the serious political risks that McCain has taken by *not* being "partisan" on many issues.)  To say this is not to say that Sen. Obama is a bad person or deny that there is something exhilarating about a youthful, African-American major-party candidate; it is just to doubt -- his charisma notwithstanding -- that he's meaningfully different, in his plans and policies and views, than other left-liberal American politicians.

In conclusion . . . re-read the preface, above.

Kmiec on same-sex marriage

Like Rob says, Doug Kmiec's recent post at Slate is quite ambiguous with respect to his position on same-sex marriage and the law.  Certainly, in the past, he has been a staunch opponent of moves to constitutionalize a right to same-sex marriage, and a supporter of an amendment to the Constitution to prevent such constitutionalization.  Consider, for example, this back-and-forth, with Larry Tribe, on the NewsHour a few years ago.  Kmiec said (among other things):

I respectfully disagree with my friend Professor Tribe. I think he's taken a definite position that he favors gay marriage and he's therefore sees it as an expansion of right. Others of us would see it as a disregard of created reality, of in fact the fact that states have preferred marriage, have given it a position of prominence because it does some very important things. It supplies new members to our community and it supplies a household that is the most important educator for our community. In this sense it's not a denial of right; it is an affirmation of what is important.

And, as he writes in this earlier Slate post, discussing the California decision, he wrote a brief in the case contending that "marriage is properly reserved to a man and a woman." 

Doug is someone who does his best, I think, to find points of agreement, and to blunt, to the extent possible, points of disagreement.  Maybe that's what was going on in the exchange with Dale Carpenter (who is also, in my experience, an admirably charitable discussant).

Still more on pro-life speech at York

With respect to our conversation about pro-life speech, secular universities, etc., a reader sent me this:

I would like to discuss a little bit more about the context of abortion in Canadian Universities.  First off, I am a university student (Laurentian) in Ontario, majoring in political science.  I am a convert to the Catholic Church, and my main interest (as my classmates will attest) has generally been in religion and politics. 

Regarding this whole situation, I think a few things should be included.  One, York is a public university, therefore, it is provided with plenty of public funding.  This primarily comes from the province, since education is constitutionally granted to the provinces.  While we do not have the First Amendment in Canada, we do have Charter protections that do substantially protect many of the same issues surrounding the First Amendment, but they can be limited by legislature when it is deemed appropriate.  While this may seem like that this university would be held to this standard, the courts have ruled that universities are not government institutions.  I am unsure if this a positive development or not. 

Relatedly, York is (I believe) the second largest university in Canada, with the University of Toronto the first,  having approxiamtely 45 000 students.  For the student body to even consider limiting discussion goes against the spirit of the university . . . . 

However, one of the more interesting developments is the response of the Canadian Federation of Students (CFS).  CFS comprises most of the universities in Canada, with fees costing over $10 a student from each member school.  They are a union that claims to represent the interests of students, yet, there is little consultation between them, various student governments, and students.  To take one example, Ontario recently had a electoral referrendum which asked if voters wished to switch to a mixed-member proportional system.  It was defeated.  However, CFS came out in favor of it and listed Laurentian as a supporter of their position.  Consequently, the school president had to write a letter to the school newspaper stating that they were not consulted at all.  This behavior typifies the CFS and how it treats its members.