Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Wednesday, August 25, 2004

Kalscheur on "Catholics and the State"

A recent issue of America magazine includes an essay by our colleague, Greg Kalscheur, called "American Catholics and the State: John Courtney Murray on Catholics in a Pluralistic Democratic Society." (Here is a link, but the full essay requires a subscription). The essay is an adaptation of Greg's paper -- which was discussed at MOJ a few months ago -- on John Paul II, Murray, and pluralism.

Like his longer paper, Greg's America essay is thoughtful, careful, charitable, and well worth reading. Greg uses the thought and work of Fr. Murray to explore the issues treated by the Congregation for the Doctrine of the Faith in its recent "Doctrinal Note on Some Questions Regarding the Participation of Catholics in Political Life" (link). He observes that "Catholic participation in public life is to be guided by, not separated from, fundamental moral concerns" and that "this insistence that moral beliefs inform policy choices is, in the end, a matter of integrity." From this and other points it follows, "inescapabl[y]," that -- among other things -- public officials have a "grave and clear obligation to oppose any law that attacks human life."

With respect to abortion, Greg says that how a public official ought to go about "promot[ing] justice and the common good by striving to reduce [its] incidence" is "complicated" because of the "the state of American constitutional law regarding the abortion issue. The legislator must oppose laws that promote abortion, but in the United States abortion is a matter of constitutional right, not an action authorized by legislation." "Morality . . . and law . . . are not," Greg reminds us, "coextensive in their functions. Legal prohibitions can have only a limited effetc on shaping moral character." So, "society should not expect a great deal of moral improvement from legal prohibitions." He continues, "for the law truly to serve the common good, some level of consensus as to the goodness of the law is essential. And, in the face of widespread moral disagreement on an issue, the public conscience may need to be clarified through nonlegal educative efforts in an atmosphere of reasoned dialoge and factual argument before the law can effectively promote the common good."

I won't reproduce the entire essay, which moves on to develop Greg's ideas about "how to promote fundamental moral values through law and policy" under conditions of pluralism, but I did have one reservation: Greg appears to take it as given that "abortion is a matter of constitutional right." And, in light of this "given" (which would prevent even the most pro-life legislature from enacting abortion laws that were fully in accord with morality), we are all -- citizens and legislators -- left with the tasks of (a) trying to reduce the number of abortions, and to create a society that better appreciates the dignity of life, through non-regulatory means, and (b) trying to create a consensus about the common good through "reasoned dialogue and factual argument."

What happens, though, if -- through reasoned dialogue and factual argument -- a consensus is created that abortion is a grave moral evil, one that should be closely regulated, if not prohibited? That is, assume we reached conditions where Murray would agree that our laws could reflect and honor moral truths? Our Constitution, as it is presently (mis)understood by a majority of the Justices, would prohibit us from acting on that consensus. Put differently, in light of our presently mis-shapen constitutional law of abortion, it doesn't matter whether or not there is consensus that abortion is evil (and, remember, there actually is broad consensus that abortion should be more closely regulated than it is now); abortion still may not be regulated (except in relatively insignificant ways).

This suggests to me that we ought not to regard -- and, that Catholic politicians who are committed to integrity and to the common good, but who also appreciate Murray's insights about law, morality, and pluralism, ought not to regard -- the constitutional status of the abortion right as "given," but should instead regard it as a basic political priority to bring about a new -- or rather, the correct -- understanding of the Constitution. So, just as -- pluralism notwithstanding -- a Catholic politician ought to oppose laws that fund or directly facilitate abortion, perhaps such a politician ought also to insist on measures to correct the Roe and Casey Courts' errors? Even a Murray-admiring politician who determined that, under present conditions, abortion could not prudently or effectively be regulated, might also think that -- in anticipation of the day when reasoned dialogue produced consensus concerning the grave evil of abortion -- steps should be taken (e.g., the appointment of judges who are open to permitting legislatures meaningfully to regulate abortion) to make it possible for a future legislature to act on that consensus.

Any thoughts?


UPDATE: Greg's essay is available on the Boston College Law School web site.


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