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.

Monday, October 27, 2008

A False Distinction

In his April 27, 2007 interview with reporter Nicole Gudiano, Senator Joseph Biden was asked questions on how he reconciled his Catholic faith with his support of Roe v. Wade. While he expressed some concern regarding the termination of a pregnancy, he asserted that his “church has wrestled with this for 2,000 years.” He concluded the interview with the statement, “To sum it up, as a Catholic, I’m a John XXIII guy, I’m not a Pope John Paul guy.” The Senator has been rebuked by a number of bishops and citizens for the position on abortion that he has advanced. Moreover, he has been corrected about his faulty understanding of Catholic teachings. My intention in writing today is not to reiterate these points but to show that his distinction between being a “John XXIII guy” versus a “Pope John Paul guy” is false. My proposition is based not on untested theory, but on the statements of these two Popes and the declarations of the Second Vatican Council that Blessed John XXIII convened.

In his 1961 encyclical letter Mater et Magistra, Blessed John XXIII stated:

N. 189. Besides, the resources which God in His goodness and wisdom has implanted in Nature are well-nigh inexhaustible, and He has at the same time given man the intelligence to discover ways and means of exploiting these resources for his own advantage and his own livelihood. Hence, the real solution of the problem is not to be found in expedients which offend against the divinely established moral order and which attack human life at its very source, but in a renewed scientific and technical effort on man’s part to deepen and extend his dominion over Nature. The progress of science and technology that has already been achieved opens up almost limitless horizons in this held.

N. 192. The only possible solution to this question[i.e., population] is one which envisages the social and economic progress both of individuals and of the whole of human society, and which respects and promotes true human values. First consideration must obviously be given to those values which concern man’s dignity generally, and the immense worth of each individual human life. Attention must then be turned to the need for worldwide co-operation among men, with a view to a fruitful and well-regulated interchange of useful knowledge, capital and manpower.

N. 193. We must solemnly proclaim that human life is transmitted by means of the family, and the family is based upon a marriage which is one and indissoluble and, with respect to Christians, raised to the dignity of a sacrament. The transmission of human life is the result of a personal and conscious act, and, as such, is subject to the all-holy, inviolable and immutable laws of God, which no man may ignore or disobey. He is not therefore permitted to use certain ways and means which are allowable in the propagation of plant and animal life.

N. 194. Human life is sacred—all men must recognize that fact. From its very inception it reveals the creating hand of God. Those who violate His laws not only offend the divine majesty and degrade themselves and humanity, they also sap the vitality of the political community of which they are members.

N. 195. It is of the utmost importance that parents exercise their right and obligation toward the younger generation by securing for their children a sound cultural and religious formation. They must also educate them to a deep sense of responsibility in life, especially in such matters as concern the foundation of a family and the procreation and education of children. They must instill in them an unshakable confidence in Divine Providence and a determination to accept the inescapable sacrifices and hardships involved in so noble and important a task as the co-operation with God in the transmitting of human life and the bringing up of children.

N. 196. Genesis relates how God gave two commandments to our first parents: to transmit human life—”Increase and mutliply”—and to bring nature into their service—“Fill the earth, and subdue it.” These two commandments are complementary.

N. 197. Nothing is said in the second of these commandments about destroying nature. On the contrary, it must be brought into the service of human life.

N. 198. We are sick at heart, therefore, when We observe the contradiction which has beguiled so much modern thinking. On the one hand we are shown the fearful specter of want and misery which threatens to extinguish human life, and on the other hand we find scientific discoveries, technical inventions and economic resources being used to provide terrible instruments of ruin and death.

N. 199. A provident God grants sufficient means to the human race to find a dignified solution to the problems attendant upon the transmission of human life. But these problems can become difficult of solution, or even insoluble, if man, led astray in mind and perverted in will, turns to such means as are opposed to right reason, and seeks ends that are contrary to his social nature and the intentions of Providence.

In the Pastoral Constitution in the Modern World, Gaudium et Spes, issued by the Second Vatican Council convened by Blessed John XXIII, the Council, in 1965, had this to say about abortion:

N. 27 Furthermore, whatever is opposed to life itself, such as any type of murder, genocide, abortion, euthanasia or willful self-destruction, whatever violates the integrity of the human person, such as mutilation, torments inflicted on body or mind, attempts to coerce the will itself; whatever insults human dignity, such as subhuman living conditions, arbitrary imprisonment, deportation, slavery, prostitution, the selling of women and children; as well as disgraceful working conditions, where men are treated as mere tools for profit, rather than as free and responsible persons; all these things and others of their like are infamies indeed. They poison human society, but they do more harm to those who practice them than those who suffer from the injury. Moreover, they are supreme dishonor to the Creator.

N. 51 For God, the Lord of life, has conferred on men the surpassing ministry of safeguarding life in a manner which is worthy of man. Therefore from the moment of its conception life must be guarded with the greatest care while abortion and infanticide are unspeakable crimes. The sexual characteristics of man and the human faculty of reproduction wonderfully exceed the dispositions of lower forms of life. Hence the acts themselves which are proper to conjugal love and which are exercised in accord with genuine human dignity must be honored with great reverence. Hence when there is question of harmonizing conjugal love with the responsible transmission of life, the moral aspects of any procedure does not depend solely on sincere intentions or on an evaluation of motives, but must be determined by objective standards. These, based on the nature of the human person and his acts, preserve the full sense of mutual self-giving and human procreation in the context of true love. Such a goal cannot be achieved unless the virtue of conjugal chastity is sincerely practiced. Relying on these principles, sons of the Church may not undertake methods of birth control which are found blameworthy by the teaching authority of the Church in its unfolding of the divine law. All should be persuaded that human life and the task of transmitting it are not realities bound up with this world alone. Hence they cannot be measured or perceived only in terms of it, but always have a bearing on the eternal destiny of men.

Fast-forwarding to the papacy of Pope John Paul II, he proposed in his 1995 encyclical letter Evangelium Vitae, the following point that characterizes his view on abortion:

N. 2 The Church knows that this Gospel of life, which she has received from her Lord, has a profound and persuasive echo in the heart of every person-believer and non-believer alike—because it marvelously fulfils all the heart’s expectations while infinitely surpassing them. Even in the midst of difficulties and uncertainties, every person sincerely open to truth and goodness can, by the light of reason and the hidden action of grace, come to recognize in the natural law written in the heart (cf. Rom 2:14-15) the sacred value of human life from its very beginning until its end, and can affirm the right of every human being to have this primary good respected to the highest degree. Upon the recognition of this right, every human community and the political community itself are founded.

He then would go on in this encyclical letter and refer to the Second Vatican Council’s statement that abortion is an “unspeakable crime.” If some would think the John Paul’s words contained nuance about the permissibility of abortion in some circumstances, that possibility evaporates in light of these words:

N. 62 Therefore, by the authority which Christ conferred upon Peter and his Successors, in communion with the Bishops—who on various occasions have condemned abortion and who in the aforementioned consultation, albeit dispersed throughout the world, have shown unanimous agreement concerning this doctrine—I declare that direct abortion, that is, abortion willed as an end or as a means, always constitutes a grave moral disorder, since it is the deliberate killing of an innocent human being. This doctrine is based upon the natural law and upon the written Word of God, is transmitted by the Church’s Tradition and taught by the ordinary and universal Magisterium.

The distinction that Senator Biden makes in claiming the John XXIII mantle while discarding the John Paul II one does not exist. Both popes were of the same view regarding the evil of abortion. To be a John XXIII “guy” is simultaneously a claim to be a John Paul II “guy.” The Senator’s characterization leading to a supposed difference is therefore wrong.      

RJA sj

October 27, 2008 in Araujo, Robert | Permalink | TrackBack (0)

Abortion "Rhetoric"

Last week, Eduardo wrote:

In any event, and this is really my principal point in writing this post, given the differential treatment of abortion, I think it is highly inappropriate for advocates of prohibition … [to use] the rhetoric of "murder" … arguments that almost always rely on the language and imagery of murder (e.g., Cardinal George's blood-drenched language, frequent references to the killing of millions of defenseless "children," comparisons to the holocaust, etc.).  I don't think that proponents of this particular mode of argument can have their rhetorical cake and eat it to.

Eduardo wrote this in the context of this year’s election, but if this “rhetoric” is inappropriate in the context of an election, maybe it is inappropriate elsewhere as well.  My questions for Eduardo and others is this:  Is using “blood-drenched language, frequent references to the killing of millions of defenseless ‘children,’” merely “rhetoric”?  Or, is it language designed to express the truth of the matter asserted?

Is abortion the taking of a life?  Is the form of the taking an act of intentional killing of a life?  Is the life taken innocent of any wrongdoing?  Is the life taken human?  Is the method of taking the innocent human life brutal?  If the answers to these questions are “yes,” then Cardinal George’s “blood-drenched language” is a form of truth telling, not merely rhetoric, political or otherwise. 

And, it seems to that it is beyond dispute that the answers to these questions are “yes.”  Don’t misunderstand.  By saying that it is beyond dispute, I am not attempting to shut down the conversation.  Quite the opposite, I am inviting the conversation.  I would like someone who is opposed to this truth telling rhetoric to explain to me how abortion is not the brutal and intentional taking of innocent human life.  In other words, what is untrue about the rhetoric?

October 27, 2008 in Scaperlanda, Mike | Permalink | TrackBack (0)

Debate . . . and doublespeak?

I read Lisa's recent post, on debate about abortion within the women's movement, just after I saw this, "Democrats play both sides of abortion politics in congressional races," from the Feminist Law Professors blog:

Two contrasting views of the Democratic Party’s use of the abortion issue in this year’s election have emerged in recent press reports.  When one reads them together, a fascinating picture emerges of how the Dems are deploying and funding anti-choice messages in the conservative House districts that they hope to pick up from Republicans while simultaneously playing up pro-choice messages in districts where that works for them. Pragmatic or just smarmy?

The strategy is pretty clear: say whatever works on the social issues in order to capitalize on the wave of anger and frustration bordering on desperation that is about to sweep Obama into office and possibly change the face of Congress. And hey, I’ve got no desire to stand in the way of that. . .

[quoting the New York Times:] …[T]his year, the party has not only gone to great lengths to recruit such candidates, it has also provided them significant financial backing, underscoring a new pragmatism within the party, said Kristen Day, the executive director of Democrats for Life, an anti-abortion group. “This is the year that pro-life Democrats have received the most support from the party in Washington,” said Mrs. Day…

[quoting The American Prospect:]… this year, Democratic political operatives have been surprised by the success they’ve had in deploying pro-choice messages. Congressional campaigns from New Jersey to Nevada have picked up on the trend, and outside groups spreading the word are not just usual suspects like NARAL and Planned Parenthood, but also the Democratic Congressional Campaign Committee (DCCC).

October 27, 2008 in Garnett, Rick | Permalink | TrackBack (0)

Rick’s Missing Priorities: Obama and School Choice – An Anecdote

I agree with Rick that the issue of school choice has been largely missing from discussions surrounding the “Catholic vote” in the upcoming election.  With respect this subject, let me share with you a brief conversation that I had with one of the presidential candidates several years ago.

Like many institutions, Loyola University Chicago School of Law sponsors an annual Martin Luther King, Jr. lecture in honor of the slain civil rights leader.  A few years ago, when he was serving in the Illinois Senate, we invited Barack Obama to deliver the lecture.  He gave what was by all accounts a superb address in which he stressed the importance of education as the fulfillment of Dr. King’s dream.  Education is, after all, not only the key to better jobs and higher levels of employment and income, but it is one of the primary means of personal development and discovery about the world.

After the lecture, Obama met with those in attendance and responded to some questions.  I introduced myself – his wife Michelle and I were law school classmates, and we also worked as associates in the same Chicago law firm.  I then asked him why, given his obvious appreciation for the importance of education, the meaning it can have in the life of an individual, and the need to make decent education available to all young people in order to fulfill Dr. King’s dream, why wouldn’t he support vouchers?

His initial response was that we shouldn’t give up on public schools (a point with which I agreed) and that we needed to provide additional funding to these schools in order to help them succeed.  I then reminded him of the fact that many private schools spend far less on their students than do public schools with much better results.  He said that those results were skewed because private schools could be selective in the students they admitted.  I said that while that was undoubtedly true of some private schools, it wasn’t true of the Catholic parochial schools in the Archdiocese of Chicago, many of which are located in some of the most disadvantaged areas of the City.  And I have to say, I was struck by the fact that he really didn’t have a response to this.  He simply returned to the point that we shouldn’t give up on the public schools.

My impression from the lecture and this brief encounter was that Obama was a very able speaker with a commanding presence.  My impression – not based on what he said but on what he didn’t say – was that this was a man who couldn’t speak his mind on education because he was beholden to the teachers’ unions.  Sadly, this appears to be a feature of his political identity (see the article here) that seems not to have changed over time.

October 27, 2008 | Permalink | TrackBack (0)

Sunday, October 26, 2008

Debate about Abortion in the Leadership of the Women's Movement? Imagine that!

There's a very interesting article in the Washington Post about the profound effect Sarah Palin is having on "traditional" feminism.  The article points out that:  "As Election Day nears, it's clear that gender was not a disqualifying factor for either Clinton or Palin.  Voters who turned against them did so for other reasons, just as they do with male candidates.  Women from both parties also perceive with satisfaction a heightened emphasis on their issues in this year's race."

Most interesting (and encouraging) for some of us Catholic "new feminists", though, is this description of how her witness as a pro-life woman is affecting "traditional" feminists. 

The unexpected recognition of a conservative as a role model for women has forced some traditional feminists to reconsider the movement's mission. "It's going to take us a while to find our bearings," said Sarah Stoesz, who runs the Planned Parenthood office that oversees Minnesota and the Dakotas. "As feminists, we've always thought that a core aspect of women's equality is about being in control of our reproductive lives. But Sarah Palin is throwing the calculus out the window and demonstrating a view that some people would call feminism: I can be governor, I can have five children, I can shoot and field-dress a moose, and I don't need access to abortion.

"There's a big debate inside the leadership of the women's movement about how much abortion should be a key political issue."

. . .

The next big issue for women, Bernard surmised, is to determine whether both sides of the ideological spectrum can find common ground. "Is there a big enough tent -- can we all find the common ground in the push for women's rights regardless of women's position on abortion?" she asks.

In recent years, vocal groups such as IWF and Feminists for Life have stepped forward to fight the perception that only liberal women can be in favor of equality and independence. By calling herself a feminist -- once considered a dirty word by the religious right -- Palin proclaimed that feminism is no longer synonymous with liberalism but something that could be shared and celebrated by all women.

. . .

"It's just nonsense to say you can't be a feminist and be against abortion," says former Clinton fundraiser and supporter Lynn Forester de Rothschild, who now backs McCain. "Democrats use [abortion] as a noose around your neck," says de Rothschild, who is in favor of abortion rights. "Sarah Palin," she says, "rocks all the stereotypes of feminism and can only enhance progress for women. "

October 26, 2008 in Schiltz, Elizabeth | Permalink | TrackBack (0)

More on punishing abortion

With respect to Eduardo's most recent post on the matter . . . He writes that "the question is whether deciding in advance not to pursue for criminal sanctions the person who has procured the intentional killing of the unborn (when the state vigorously pursues that person in every other category of homicide, at least when dealing with those who have been born) does not reproduce, within the legal prohibition, the same dignitary/equal-protection type harm that the legal prohibition was designed to remedy."  This is -- we agree -- an important question but, as I suggested earlier, I think the answer is "no, such a decision does not reproduce the same harm that the legal prohibition was designed to remedy."

Nor, in my view, does it attack the agency or dignity of women to suggest that women procuring abortions and those who perform them could be treated differently, for purposes of punishment and regulation.  Many women who procure abortions will not know all the relevant facts about abortion, fetal development, adoption-options, etc. -- and, I fear, this problem will be exacerbated by efforts in Congress to roll back informed-consent laws, etc.  The entire culture of legal abortion, and the messages that attend it, serve to obscure the truth about abortion.  Those who perform abortions, on the other hand, know exactly what they are doing and it is fair for the law to hold them to an obligation to know what they are doing.

Eduardo then concludes with the suggestion that "an obvious alternative [to an excuse regime] would be to say that, although human beings, the unborn are entitled to less than the born in terms of legal protection (which is not the same as saying no protection)."  I do not believe this alternative is attractive; one can construct a legal regime that responds to some homicides in different ways than it responds to others without endoring or communicating, in the law, the unsettling notion that some human persons are less entitled to be protected against lethal violence than are other human persons.  "Different" protection-strategies, it seems to me, are fine; but the basic entitlement to the right-to-life, and to effective protection from lethal violence, needs to be the same.

Questions about whom and how to punish are, no doubt, complicated.  Still, there is a basic human right to equal protection which, I believe, requires at least this much:  the law should acknowledge the dignity and worth of every human person by forbidding elective abortion and by taking those steps reasonably calculated to effective deter abortion.  Lots of legal steps (including steps that do not involve "murder" liability for women who undergo abortions) are consistent with this bedrock starting point; but, our currrent regime, like any regime in which it is not unlawful (and is, indeed, publicly subsidized) strikes me as extremely difficult to reconcile with what we believe, and the Church teaches, about the dignity of all human persons.

October 26, 2008 in Garnett, Rick | Permalink | TrackBack (0)

Saturday, October 25, 2008

Constitutional "Interpretation", Proper Judicial Role, Etc.

Over the years, some of the posts here at MOJ, by Rick Garnett and others, have concerned constitutional controversies (e.g., capital punishment) and the proper role of the courts--especially the proper role of SCOTUS--is resolving such controversies.  I recently posted a paper at SSRN that addresses, among other, related issues, the question what it means, or should mean, to "interpret" the constitutional text.  Some MOJ readers may be interested.  Here's the SSRN link, where the paper can be downloaded:  Perry Paper.

And here's the abstract:

Entrenching, Interpreting, and Specifying Human Rights:
Some Comments on the U.S. Constitution and Judicial Review

Michael J. Perry
Emory University School of Law; University of San Diego - School of Law

Emory Public Law Research Paper No. 08-46
San Diego Legal Studies Paper No. 08-078

This essay is my contribution to a symposium on originalism, to be held at the University of Western Ontario in October 2008. In the essay, I address the question What does it mean - or, at least, what should it mean - to 'interpret' the constitutional text? I then explain that one's answer to that question - even if one's answer is originalist - does not entail any particular answer to two further, distinct questions:

(1) How large a role, or how small, should the U.S. Supreme Court play in specifying - in rendering more determinate - a constitutional norm that is implicated by, but underdeterminate in the context of, one or another constitutional controversy?

(2) In resolving constitutional controversies, should the U.S. Supreme Court always proceed, at least in part, on the basis of what it believes to be the correct interpretation of the constitutional text?

I conclude this essay with a question I have addressed elsewhere, and to which I will eventually return: In specifying entrenched but contextually underdeterminate human rights norms, should the U.S. Supreme Court take the path of Thayerian deference?

Comments and questions welcome - indeed, invited.

October 25, 2008 in Perry, Michael | Permalink | TrackBack (0)

David Warren on Obama's “Messianic Pretensions”

Canadian commentator David Warren gives expression to the concerns that many of people of faith have about the man likely to become the next President. Herewith an excerpt (full editorial here):

Obama has presented himself from the start as a messianic, “transformational” leader — and thus played deceitfully with ideas that belong to religion and not politics. That he has done this so successfully is a mark of the degree to which the U.S. itself, like the rest of the western world, has lost its purchase on the Christian religion. Powerful religious impulses have been spilt, secularized.

In this climate, people tend to be maniacally opposed to the sin to which they are not tempted: to giving Christ control over the things that are Caesar’s. But they are blind to the sin to which they are hugely tempted: giving Caesar control over the things that are Christ’s.

“Faith, hope, and charity” are Christ’s things. They apply, properly, outside time — to a “futurity” that is not of this world. They must not be applied to any earthly utopia. A Caesar who appropriates otherworldly virtues, is riding upon very dangerous illusions. Follow him into dreamland, and you’ll be lucky to wake up.

October 25, 2008 in Sisk, Greg | Permalink | TrackBack (0)

Missing "priorities"

A few days ago, E.J. Dionne discussed with his (I admit) wider-than-MOJ readership what MOJ readers already know, i.e., Catholics are not "one issue" voters and are divided with respect to the upcoming election.  (To be clear -- no one thinks that Catholics are or should be "one issue" voters; some of us do think, though, that the abortion problem is more than just "one issue" among many.)  He concludes with the prediction that "this election could hang on the struggle of Catholic voters with their priorities and their consciences." 

I was sorry to see that no where in his piece -- or in the statements of Bishop Gabino Zavala, which Dionne discussed -- did the matter of education-reform / school-choice / religious freedom / Catholic schools come up.  It seems to me that this really has been the "missing issue" in the great "how should Catholics vote" debate.  And, as our own Greg Sisk has explained (here and here), this is unfortunate, both because the issue is foundationally important and because the Church's Social Teaching speaks quite clearly in this context.  (It is likely, for example -- and deeply regrettable -- that Washington, D.C.'s school-choice program will be terminated by the next Congress, with President Obama's acquiescence, once President Bush is no longer there to veto a repeal-attempt.)

October 25, 2008 in Garnett, Rick | Permalink | TrackBack (0)

The Plot--Obamacons--Thickens

[Or is it "Obamacans"?  This is lifted from dotCommonweal:]

McCain Loses Fried

Posted by Eduardo Peñalver

This is interesting.  It seems to me that, with the exception of Kmeic, what the “Obamacons” all have in common is that they are not members of the Religious Right.  It suggests the collapse of the Republican Coalition.  In light of this exodus, it’s interesting that many in the Church’s leadership have decided to double down on the Republican nominee.  If Obama hangs on and wins, exactly how much influence do the Catholic Bishops expect to have in an Obama administration?  HT Cass Sunstein:

Charles Fried, a professor at Harvard Law School, has long been one of the most important conservative thinkers in the United States. Under President Reagan, he served, with great distinction, as Solicitor General of the United States. Since then, he has been prominently associated with several Republican leaders and candidates, most recently John McCain, for whom he expressed his enthusiastic support in January.

This week, Fried announced that he has voted for Obama-Biden by absentee ballot. In his letter to Trevor Potter, the General Counsel to the McCain-Palin campaign, he asked that his name be removed from the several campaign-related committees on which he serves. In that letter, he said that chief among the reasons for his decision “is the choice of Sarah Palin at a time of deep national crisis.”

October 25, 2008 in Perry, Michael | Permalink | TrackBack (0)