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.

Thursday, August 26, 2004

More on "Catholics and the State"

Many thanks to Greg for his reply (below). I agree that "in light of the uncertainties that surround the prospects for . . . doctrinal change [i.e., change in the constitutional law of abortion] anytime soon, . . . it's crucial to think about what it means to be a pro-life public official in a broader moral-political-legal context." And, I think that Greg's work is going a long way toward helping us do just that.

But again, the kind of reasoned-dialogue-in-pluralism that Greg discussed in his paper (and about which Murray wrote) -- a dialogue that aims at achieving a moral consensus that, at present, does not exist -- can never be truly realized if a mis-shapen constitutional law precludes, from the outset, the end-game desired by half of that dialogue's participants. In other words, this "reasoned dialogue" requires, in a strong sense, significant, democracy-enhancing revisions to our constitutional law and, therefore, careful attention to the judicial-selection process.

On another front, I received an e-mail from a friend, in response to Greg's essay and my own earlier post, that raised the following points:

I find that a lot of confusion, especially among Catholics, is caused by a failure to see that the law's refusal of protection to unborn human beings is a grave injustice analytically distinct from acts of abortion. Let me put it another way: A legislator who voted to allow slavery is committing an injustice even if this law results in no actual slavery; a permissive abortion regime is unjust in its treatment of the unborn even if there are no abortions in our society. So it is not the case that the pro-life movement should focus exclusively on reducing the incidence of abortion. The twin goals should be "welcomed in life" and "protected in law."

Second, . . . it would be appropriate for a politician who believes that a flat ban on abortion would be imprudent--a conclusion that itself has to be evaluated in light of the above imperative--to insist on getting better judges. But he could also support prudent pro-life legislation such as the partial-birth abortion ban (assuming he considers it prudent). The assumption here seems to be either that the Constitution protects a right to abortion or that legislators are bound by some legal or moral duty to act as though erroneous judicial findings to this effect were true. Neither is the case.

More food for thought . . .



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