More from Russ Hittinger

Dear Cathy:

I meant by solidarity (as you correctly perceived) making the plight of
those excluded from the protection of law something “first” in one’s
public actions. I spoke of actions, not just symbols. I cannot
quarrel with your suggestion that “solidarity” with an excluded class
of human persons can be maintained at levels besides acts of voting,
legislating, and creating public laws and policies. Indeed, we have to
do this all of time, even with regard to persons who are not, strictly
speaking, excluded from the protections of law. Decent people reorder
their priorities and resources to succor needy neighbors, and they do
so without waiting for the state to act or even to recognize the
problem. Sometimes, these private acts of justice and social charity
turn out to be more efficacious than what can be furnished by law. But
I was trying to throw light on the public dimension, consisting of the
choices we make as citizens (by voting, legislating, etc.) – choices
that have a distinct kind of causality. At this level, the moral
question is not merely how to deploy forces to fix a problem, but
whether those who suffer the injustice have a claim upon the public
sphere. For me, this is not an abstract issue, although, to be sure,
it is tricky.

You and I agree that unborn human persons have a legitimate claim on us
at other levels. I am insisting that the deadly sin of the political
order is not merely its contingent inability or slowness in correcting
an injustice, but rather the use of law to rule out the claim of the
victims, to deny it access to public consideration and remedy, and to
cast the class of unprotected human persons into a status of being
merely private neighbors. Now, it could happen that once these persons
are thrown beyond the pale of law their lives will turn out okay. I am
dubious. Given all of the other things that warrant your dubiety (the
practical wisdom of the candidates, the war policies of the Bush
administration, the belligerent rationalism that overestimates what is
amenable to legal and political remedy), you should at least be dubious
about the prospect of justice when the equal protection principle is
set aside. I was disappointed that your Augustinian sensibilities,
which I share, seem to evaporate once we get to the problem of the
powerful consigning the weak to the contingencies of cultural
persuasion. On my view, this sounds too much like free-marketeers who
find every solution to distributive and legal justice in the
spontaneous hand of the market.

I contend that one ought not to vote for a candidate who, as a matter
of principle, would create or maintain the exclusion of unborn persons
from the protection of law; indeed who would go further, by using the
powers of his or her office not only to prevent a constitutional
solution, but to knock down ordinary legislation protecting some unborn
human persons. The net result of Kerry’s position is that there can be
no public prudence about this issue. It is the severity and totality
of the principle that alert us to the fact that we are not dealing with
tough issues of prudence. Rather, we are dealing with a canceling-out
of the principle that makes prudence possible, at least in this
particular case. I agree that there are other issues of justice that
demand our attention, including the torture and abuse of prisoners,
derogation from the international law of war, the poverty of families,
just for starters. The point that I am making is that these kinds of
injustice are not excluded from the common law of our society. Each
one can be addressed and remedied on the basis our corporate moral and
legal order. We might disagree about the facts, but no one believes
that we are not entitled to deliver judgment in these matters that
binds everyone.

Perhaps you and I are considering two very different examples of how a
problem of justice gets opened-up or closed-off. You are worried about
the long-range pattern of social legislation, which, if prudently
framed and pursued would tend to ameliorate the situation of the weak
and vulnerable. As you can see, I have emphasized the use of the most
public of things, equal rights under law, to insure that rightful
claims can be heard and that public business can be conducted on the
matter. Anyone who holds the latter should hold the former.
International instruments and covenants of human rights hold both
principles. They belong together. In moral logic there is an order of
priority between the two. I won’t insist on this entailment right
here, because I am willing to admit that in working for certain good
consequences one can find himself implicitly affirming the suppressed
principle.

Yet, I keep waiting to hear from the party of long-term amelioration
some recognition (let it be highly coded, and let it be a velleity
aimed at the future) that the well-being of unborn persons is truly a
matter of public business – just for who they are, and not merely as
potential, if not anonymous, beneficiaries of social policy designed
for other people. After all, what it means to be in a community of
justice is not just bringing about good external consequences, but also
affirming the good of the persons to whom these other things accrue.
So, I look for the party of amelioration to make a more generous
gesture in the direction of the personal good of the unborn and their
equality before the law, and to show that the social policies are not
reinforcing the position that one class of human persons are only
incidentally factored into the justice of the city. Once the principle
is admitted, then we can debate time-tables and the plethora of issues
that legitimately fall to the order of prudence.

Concerning all of the other issues you raise about Bush versus Kerry, I
think you are right about some and not so right about others. But I am
not entirely sure.

Your friend,
Russ H.