Friday, February 20, 2015
If one were asked to guess who or what in recent history has placed "a mortgage on the Church," one might be expected to answer: the child-raping priests, the chancery staffs that turned a blind eye to raping priests, the bishops who oversaw (sic) such chanceries and thus facilitated such abuse, etc. Well, one would be wrong, however. According to Pope Francis, it is the ordaining of traditionalists to the ministerial priesthood that places "a mortgage on the Church." Who knew?! The indictment by the Pope is here.
Pope Benedict's humble successor Francis also indicts as "mistaken" those who in undoubted "good faith" pursue a "reform of the reform." Readers will no doubt recall that a signal accomplishment of the too-short pontificate of Benedict XVI was a clarification of the concept of the reform of the reform and a resolve to implement one. I had my doubts at the time that a reform of the reform was sufficient for what was ailing the Church, and history has vindicated my doubt, alas. A reform of the reform that can be swept away, indeed ridiculed, as "mistaken" even before its tenth birthday offers about as much ecclesial medicine as a so-called Happy Meal offers nutritional value.
I leave aside for now consideration of Francis's words, in the same address to the Roman clergy, on the Ars Celebrandi. Those words of the Pope would need to be squared his own practice of starting to glance at his watch when liturgies last longer than, say, forty-five minutes, a task up to which I do not feel on the First Friday of this Lent.
Thursday, February 19, 2015
As I have written elsewhere, I favor comprehensive immigration reform, including some form of amnesty for many of the 11-12 million people currently residing in the United States without authorization. But, a formal repreive - even a temporary one - for those residing here illegally must, under our Constitution, come via legislative action not executive fiat. Last November, frustrated by congressional impasse, President Obama directed Homeland Security to give a formal 3 year repreive (called DAPA) to 4 to 5 million persons living in the United States without authorization. It is my assessment that this action and subsequent action by the Secretary of Homeland Security amounted to unconstitutional legislating by the Executive (I may elaborate in a later post).
26 states sued to enjoin the enforcement of DAPA, and this past Monday a federal judge granted a preliminary injunction halting the implementation of DAPA. In a circumspect opinion, the judge ruled that Homeland Security failed to comply with the notice and comment requirements of the Adminstrative Procedures Act. The court very properly declined to address the constitutional separation of powers issues at the preliminary injunction stage because "[j]udging the constitutionality of action taken by a coequal branch is a 'grave' and 'delicate duty' that the federal judiciary is called on to perform. ... if there is a non-constitutional ground upon which to adjudge the case, 'it is a well-established principle governing the prudent exercise of this Court's jurisdiction that normally the Court will not decide a constitutional question.'"
Based upon its conclusion (rightly I think) that the administration engaged in substantive rulemaking rather than prosecutorial discretion, I have little doubt that this court will find a separation of powers violation if it reaches the constitutional issue, but I applaud the judge's efforts to avoid the constitutional issue.
Dear Governor Brownback, Speaker of the House Merrick, and Senate President Wagle:
I am writing to urge you to support repeal of the death penalty in Kansas. Although I do not regard capital punishment to be on a moral par with the deliberate killing of innocent persons—including killing unborn babies by abortion and killing elderly or handicapped persons in euthanasia—I believe that the abolition of killing as a punishment will promote a culture of life.
Although I believe that legitimate moral criticisms of the death penalty can be made even apart from religious arguments and teachings, my views on the subject are primarily informed by the moral teaching of the Catholic Church. An important development in Catholic understanding of the death penalty came with Pope John Paul II’s encyclical Evangelium Vitae (The Gospel of Life). The pope wrote that the state “ought not to go to the extreme of executing the offender except in cases of absolute necessity: in other words, when it would not be possible otherwise to defend society. Today however, as a result of steady improvements in the organization of the penal system, such cases are very rare, if not practically non-existent” (56). John Paul II reiterated this point during his visit to the United States in 1999, when he called on Christians to be “unconditionally pro-life” and work to end the death penalty.
The Catechism of the Catholic Church reflects this teaching (2267) and Pope Benedict XVI, Pope Francis, and the United States Conference of Catholic Bishops all have affirmed it. In short, the Catholic Church now firmly teaches that, in modern society, the state should abandon the death penalty and instead opt for nonlethal means to protect society, such as life imprisonment.
I am aware that many liberals object to introducing religious teachings into debates about issues of public policy. Some even regard it as illegitimate for legislators, executives, and other public officials to act, even in part, on the basis of religious convictions. They will presumably object to the appeal I am making to you. Being persons of principle, I expect that they will regard my invocation of Catholic teaching as out of bounds, even if they share my opposition to the death penalty. (Indeed, if they do not, they will expose themselves as hypocrites.) But I urge you to disregard their objections for the same reasons you should disregard objections to the invocation of religious teaching in opposition to abortion, embryo-destructive biomedical research, assisted suicide, and euthanasia.
It is my understanding that Kansas is considering legislation to forbid certain abortions or abortion procedures, such as those that dismember children in the womb late in gestation. I think it would be salutary if in 2015 Kansas would achieve this highly commendable goal while also replacing the death penalty with the punishment of life in prison for heinous murders. Together, these steps would place Kansas in the vanguard of building a culture of life.
McCormick Professor of Jurisprudence
February 19, 2015 | Permalink
Wednesday, February 18, 2015
Over at dotCommonweal ("Don't Call us Libertarians!"), Matt Boudway responds to this piece and returns to an issue / debate/ question / distraction that I've tried to address a number of times here at MOJ, namely, the asserted tension between "libertarianism" and Catholic Social Tradition.
I continue to agree entirely with the claim that Catholicism proposes a moral anthropology that is importantly and significantly different from the vision proposed by some writers, thinkers, and politicians who embrace or reasonably deserve the label "libertarian." (Robby George once called libertarianism a "heresy" and, given the target, I think he was right.) At the same time, I think that, for too many Catholics, "libertarian" is becoming little more than an epithet that one attaches to particular policy proposals or stances one does not support, whether or not those proposals or stances actually depend on or reflect "libertarian" premises. As I argued in more detail here, and here, and here, "laissez-faire libertarianism" is, in my view, usually, a straw man. A bit:
I have no interest in (my understanding of) the "objectivism" of Ayn Rand. It seems to me that the best and most morally attractive legal-and-economic regimes will be democratic-capitalist and constitutionalist with appropriate and effective social-welfare-protecting programs and constraints. But, it is not “Randian” to think that the basic “liberal” ("libertarian"?) insight -- i.e., governments should be limited by law and non-state ordering and associations should be protected and respected by law remains, well, insightful.
I agree . . . that conversations about public policy should be couched in terms that treat ideas like "competition" and "consumer choice" as means and mechanisms. But, it's worth remembering that they are, often, very effective means and mechanisms. To the extent they are, let’s use them! Sometimes, “libertarian” (or "free market" or "non-state" or "private ordering") policies are the better ones, not so much because of imperatives connected with deep anthropological premises or because of an idolatrous attachment to autonomy, but because . . . they [again, sometimes] work better (at bringing about human flourishing and common good, properly understood).
Matt writes, "There are those who believe that markets are essentially self-correcting, that the state should not concern itself with distributive justice, and that worries about inequality are reducible to envy. But Pope Francis isn't among them, and neither were his predecessors." I certainly agree with the second sentence, but I am still pretty confident that the number of "conservative Catholics" who fit the description in the first sentence is very small. The questions that tends to divide Catholics-who-all-things-considered-vote-Republican and Catholics-who-all-things-considered-vote-Democratic are, it seems to me, "how much?", "on balance, what should we do?", and "who what extent?" questions.
As this piece in the Washington Post notes, there is a lively conversation going on -- in both the physical and virtual worlds -- about the University of Notre Dame's core-curriculum review and about the possibility that the current "two courses in Theology and Philosophy" requirement could be watered down or scrapped. (Although I did not attend Notre Dame, and do not teach undergraduates -- though I'd love to! -- I believe strongly that the requirement should be enriched and deepened . . . and retained.) My friend and colleague Prof. Cyril O'Regan's presentation on the matter -- "The Catholic University, Theology, and the Curriculum" -- is outstanding, and available here. Here's a bit:
I judge the stakes regarding the current review of Curriculum to be extraordinarily high for the definition and the future of the university. We have not quite reached that pitch of apocalyptic crisis where it is appropriate to recur to the throw-down from Lord of the Rings in which Gandalf stands against the unspeakable Balrog in the mines of Moria and, facing it, says with Moses-like staff in hand: Thou shalt not pass! The jig is far from up for our beloved Notre Dame. But let there be no mistake about it, I do believe there is something seriously wrong with the emerging ethos of Notre Dame, which in my view is very much symptomed in what I regard as run-away enthusiasm for irresponsible invention evinced in the core curriculum review. This is a moment for our common reflection of what and who we are and what and who we are becoming, and possibly gather those forces whereby in a real sense we become who we are.
Read the whole thing!
My friend and colleague, Fr. William Dailey, closed his Ash Wednesday homily with a wonderfully succinct restatement of the bedrock anthropological point that many of us here at MOJ have been returning to for eleven years now: "When we realize who we really are and what we are made for . . . there's a word for that: Joy." Amen.
Monday, February 16, 2015
On February 18, St. John’s University Law School will host a panel, “Threat to Justice: Middle Eastern Christians and the ISIS Crisis,” at the university’s main campus in Queens, New York. The event will be co-sponsored by the Center for Law and Religion and the Catholic Law Students Association. Speakers will include Michael LaCivita (Catholic Near East Welfare Association), Edward Clancy (Aid to the Church in Need) and Mark Wasef (United for a New Egypt). My colleague, Mark Movsesian, will moderate.
The topic of the panel could not be more urgent in light of the near-daily barbarities perpetrated by the Islamic State.
Please join us if you’re in the neighborhood. Details are here.
UPDATE: And do read this excellent article at The Atlantic by Graeme Wood, "What ISIS Really Wants."
Wednesday, February 11, 2015
Reading through Jacob Levy's (great) new book, Rationalism, Pluralism, and Freedom, I came across (p. 66) these two quotes:
There are certain ideas of uniformity, which sometimes strike great geniuses (for they even affected Charlemagne), but infallibly make an impression on little souls. They discover therein a kind of perfection, which they recognize because it is impossible for them not to see it; the same authorized weights, the same measures in trade, the same laws in the state, the same religion in all its parts. But is this always right and without exception? Is the evil of changing constantly less than that of suffering? And does not a greatness of genius consist rather in distinguishing between those cases in which uniformity is requisite, and those in which there is a necessity for differences? In China the Chinese are governed by the Chinese ceremonial and the Tartars by theirs; and yet there is no nation in the world that aims so much at tranquillity. If the people observe the laws, what signifies it whether these laws are the same? Montesquieu, The Spirit of the Laws.
The man of system, on the contrary, is apt to be very wise in his own conceit; and is often so enamoured with the supposed beauty of his own ideal plan of government, that he cannot suffer the smallest deviation from any part of it. He goes on to establish it completely and in all its parts, without any regard either to the great interests, or to the strong prejudices which may oppose it. He seems to imagine that he can arrange the different members of a great society with as much ease as the hand arranges the different pieces upon a chess-board. He does not consider that the pieces upon the chess-board have no other principle of motion besides that which the hand impresses upon them; but that, in the great chess-board of human society, every single piece has a principle of motion of its own, altogether different from that which the legislature might chuse to impress upon it. Adam Smith, Theory of Moral Sentiments.
I'd encountered (as have most MOJ readers, I imagine) these passages before, but . . . they seemed timely.
I have posted at Public Discourse my critique of James Oleske's Harvard Law Review Forum review of my book Conscience and Its Enemies:
February 11, 2015 | Permalink
Tuesday, February 10, 2015
Earlier today the Virginia Senate passed a bill (SB 1393) to hide from public view both the drugs used to execute convicted capital criminals in the Commonwealth and those who supply these death-dealing drugs. The best explanation behind a bill like this is to shield Virginia's death-drug suppliers from criticism. Virginia apparently intends to rely on compounding pharmacies that are only willing to supply death-penalty drugs as long as nobody knows who these pharmacies are and what they are doing.
This bill does nothing to make death-penalty administration easier any time soon. If enacted, its main effect in the next months and years will likely be to wrap officials up in new constitutional litigation in which expenditures of time and money are the only guaranteed outcomes. Nor would this legislation advance any valid purpose of criminal punishment. Virginia has death-penalty drugs on hand. Should this supply run out and not be replenished (however unlikely), electrocution remains available under state law.
In truth, this legislation is not really about making executions happen. It is about insulating execution administration from criticism. That is not a good reason to pass a law like this. Although the death penalty is controversial, the right approach to controversy in a free society is not to hide what government does when it kills in the name of the law.
Self-government in a regime of ordered liberty requires critical review of the government's actions, including its administration of the ultimate penalty for criminal wrongdoing. As James Madison wrote in the Virginia Resolutions of 1798, the "right of freely examining public characters and measures, and of free communication among the people thereon, ... has ever been justly deemed, the only effectual guardian of every other right."
If bad publicity is an undesired effect of being a death-drug supplier for the state, the solution is not to supply a shield from that publicity. With no disrespect to P.T. Barnum, we should all appreciate that, at least with respect to lethal pharmaceuticals, there is such a thing bad publicity, and that is good.
It would be a different matter--one calling for a different solution--if drug-compounding pharmacies were to be illegally threatened or intimidated. But that is not a real problem right now. The law already protects against threats and intimidation anyway, while there are (properly) not laws against being criticized. As Justice Scalia has written (in a distinct but related context), "[t]here are laws against threats and intimidation; [but] harsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for self-governance."
Among those testifying against this bill yesterday were my Richmond Law colleague Corinna Barrett Lain and Virginia Catholic Conference Executive Director Jeff Caruso. When I learned that the bill had barely passed out of committee on a 7-6 vote, I had hopes that it might fail in the Senate as a whole. But instead it passed by a 23-14 vote. Voting in favor were 19 Republicans and 4 Democrats; opposing were 13 Democrats and 1 Republican. Interestingly, 3 Republicans had voted against the bill in committee. When the whole body voted, though, one Republican flipped (Sen. McDougle) and another abstained (Sen. Stuart), leaving just one to vote against (Sen. Stanley). Meanwhile, this Republican-supported bill is sponsored by a Democratic senator (Dick Saslaw) and championed by a Democratic governor (Terry McAuliffe).
It looks like the only off-ramp from this bill becoming law is the Republican-controlled General Assembly. Will they do the bidding of Virginia's drug suppliers and pass SB 1393? Or will they dig deeper instead and do the right thing by declining to drape a veil of secrecy over lethal injections in Virginia?