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, February 29, 2012

Hat-Tip in re 'Our Bodies, Ourselves,' and Today's Posts

This will not be what one would call a 'substantive' post, as I'm a bit spent today; but I cannot resist the temptation to send a hat-tip along to Robby, whose 'Our Bodies, Ourselves' post, unsurprisingly, says it all fully, powerfully, and with great economy.  Amen, Brother!, indeed.

Thanks also to all for today's very nourishing posts.  More on such matters tomorrow.

Blessings, B.

February 29, 2012 | Permalink | TrackBack (0)

Sullivan on "The Church"

At The Immanent Frame, Winnifred Fallers Sullivan this interesting post, "The Church," about the Hosanna-Tabor decision and other things.  Her basic point:  The idea of "the church" does a lot of work in the case but . . . "what is the church?"  In her view, the Court's discussion of the relevant history is too "breezy" in its dealings with the different ecclesiologies that were in play in the historical events discussed by the Court.  (I think the breeze-level was about right, given that this is a Supreme Court opinion about how to operationalize, through doctrine, the commands of a particular positive-law text, but that's not the point.)  Here is the last paragraph:

Alito, with the EEOC, sees the rights of religious organizations with respect to ideological control of their members as similar to that of all other voluntary associations, a right founded in the freedom of association expressed in the First Amendment, not in the rights of religion: “Religious groups are the archetype of associations formed for expressive purposes, and their fundamental rights surely include the freedom to choose who is qualified to serve as a voice for their faith.” This turn to the voluntariness of American religious life corresponds much more closely to what disestablished religion looks like in the United States today and to how most Americans understand their relationship to religious communities, one not of top-down hierarchy but one of bottom-up participation. It is also rooted in another reading of the history the Majority tells, one that tells a story of the freedom of Christians, and eventually of non-Christians as well. It is an understanding that sees Ms. Perich as the possessor of rights, not “the church.”

As MOJ readers know, I think it is (obviously) true that Ms. Perich has rights (though she does not have, in my view, a legal right to serve as a called minister in any particular ecclesial body), and also clearly true that "the church" does, too, against the state.

February 29, 2012 in Garnett, Rick | Permalink | Comments (0) | TrackBack (0)

Religious Freedom as Confrontation and Inflammatory Rhetoric?

On February 14 of this year, a group of faculty of John Carroll University in Cleveland led by Professor Lauritzen (a professor of religious studies and an individual who has disagreed with Church teachings on marriage, human sexuality, and embryonic stem cell research in the past) wrote a letter to the President of the University calling for a stand against the Church’s authority by John Carroll University and other Catholic and Jesuit universities “in the face of the bishops’ unwillingness to accept the accommodation offered by the Obama administration” regarding the HHS mandate. The faculty letter contends that the stance of the bishops regarding the HHS mandate, which in part addresses free contraception coverage, is confrontational and inflammatory given the Obama administration’s effort to accommodate both religious freedom and the “access to contraception [that] is central to the health and well being of women and children.” Via dotCommonweal, the faculty letter can be found here.

These faculty members at John Carroll claim they are committed to the freedom of conscience and religious freedom, but like many who advocate for human rights, it becomes clear that, in their views, some “rights” trump others. Notwithstanding their recognition that the “bishops have the right to proclaim Catholic teaching vigorously and loudly” (which, incidentally would imply that the clerics, religious, and faithful have the right to believe in Catholic teachings and exercise them in accordance with the law of the Church, the international order, and the First Amendment of the United States Constitution), they contend that anything (including authentic religious freedom and rights of conscience) that conflicts with “access to contraception” that “is central to the health and well being of women and children” is of lesser importance.

In short, their recognition of religious freedom—for individuals, for groups of believers, and for the Church herself—will have to be sacrificed when the issue of the “rights of reproductive health” is on the table.

First of all, there are several matters contained in the letter that necessitate comment. The first is this: why is contraception central to the health and well being of children? Is it because they would be at risk if they did not have access to contraception? But this prompts the anticipated question, why should children have access to contraception? Is sexual encounter the only thing they will do that may endanger their lives? Should we not be more concerned about pre- and post-natal care for them? For essential vaccinations? For basic and good health-care in their formative years? Why should only contraception for children be the only health-care issue which the John Carroll faculty are concerned?  Perhaps the letter’s signatories had in mind something else and that the reason why children’s interests are at stake is because if contraception were not made available to adults, the children who result from the “unprotected” sexual encounters may be threatened by other factors such as a difficult life or abortion. The latter point about facing abortion is presented elsewhere in the letter when its authors state that “unplanned pregnancies harm the health of women and children and lead to more abortions.” So, the reasoning seems to be this: if contraception is not paid for by John Carroll University, children’s health will be compromised because they will be aborted if free contraception is not made available to the employees of this Catholic and Jesuit institution. Thus, why can’t John Carroll University go along with everyone else who believes in “family planning services as a part of preventive health care for women”? One answer quickly comes to mind: it is attempting to preserve its Catholic identity which is guarded by the non-derogable right of religious freedom.

But there is a second group of issues that this letter prompts about the bishops’ “resistance” to the “accommodation” and their playing “politics with women’s health.” In this second category of considerations, a central item deals with the Christian Catholic understanding of the nature of the human person. At the Second Vatican Council, the Fathers asked on occasion the fundamental question: quid est homo (what is man; what is the human person)? Is the human person first and last a corporeal entity primarily concerned with sexual encounters at any time with anyone for any or no reason? Or is the human person something else? The bishops and many Catholic faithful have argued otherwise and continue to assert otherwise. If there is a theology of the body as Blessed John Paul II spoke of so often and eloquently, there is surely a theology of the human person which addresses the person’s raison d’être: to live a good, i.e., virtuous, life in preparation for union with God—each person’s undeniable destiny as understood from the Catholic perspective. Unfortunately, the faculty letter addressed to the head of a Catholic university reveals none of this. Moreover, the text echoes the voice too often heard today in human rights discourse that sexual autonomy will always trump the long-established and non-derogable rights which include religious freedom—the right to believe in the question quid est homo and to exercise the answer that inevitably follows.

A principal hallmark of Catholic education has traditionally been that it is the place where God-given human intelligence comprehends the intelligible reality that surrounds the human person and human society so that what is good (i.e., what enables all human persons to flourish on the path to their destinies) can be pursued and what is not can be avoided. The John Carroll University faculty letter does not reveal this fundamental quality of education that employs the moniker “Catholic.” As it does not, there is reason to recall the series of addresses Archbishop Michael Miller delivered in the United States in 2005 and 2006 when he was the Secretary for the Congregation of Catholic Education and where he suggested that there might be need for a kind of “evangelical pruning” for those educational institutions which have compromised their Catholic identity, an identity that clearly and centrally is concerned with the question of what is the human person. I join the many who do not think that this is the right path for John Carroll University to take. Since the authors of the letter upon which I have been offering some comment have urged other institutions to follow their counsel, I do not think that the fruits of their advocacy constitute the proper path for any Catholic institution to pursue unless it wishes to cede its soul, its identity, by casting off the banner of Christ and accepting whatever accommodation might be offered so that “confrontation” and “inflammatory rhetoric” may be avoided.


RJA sj

February 29, 2012 in Araujo, Robert | Permalink | TrackBack (0)

Joseph Weiler at St. John's Law School

The Center for Law and Religion is delighted to announce that Professor Joseph Weiler (NYU) will visit us at St. John's Law School next Monday, March 5, at 5:30 pm.  His is the third session in our ongoing seminar, Colloquium in Law: Law and Religion.  Professor Weiler will be presenting a paper dealing with the case of Lautsi v. Italy, which involved the display of the crucifix in Italian public schools and in which he was an advocate for several intervening European states.  Academics in the New York area and beyond are welcome to attend.  Please contact me if you wish to do so.

February 29, 2012 in DeGirolami, Marc | Permalink | TrackBack (0)

Tuesday, February 28, 2012

Kevin Walsh on the Catholic Justices on the Rehnquist and Roberts Courts

Kevin Walsh is guest blogging at CLR Forum over the next few weeks about, among other subjects, a paper he presented at the Pepperdine conference dealing with Catholic Supreme Court Justices on the Rehnquist and Roberts Courts.  His first couple of posts are up -- stop on by to take a look.

February 28, 2012 in DeGirolami, Marc | Permalink | TrackBack (0)

Our bodies, our selves

I appreciated, as always, Bob Hockett's post (and his fascinating conversion story). The money quote, it seems to me, is this:

"Our embodiment is essential to who we are, and what has value in our judgement, it would seem to me, must accordingly itself relate back to embodiment."

Amen, brother!

In thinking about human dignity and human rights, it is critical, in my view, to avoid the mistake of supposing that the human "person" is a non-bodily substance (a mind, a consciousness, a spirit, a soul) that inhabits and uses (as if it were an extrinsic instrument of the non-bodily self) a non-personal (and, thus, subpersonal) body. If we avoid that error, we are unlikely to embrace propositions whose logic takes us down the road to infanticide and euthanasia. We will avoid the idea that there are human beings---living members of the species Homo sapiens---who (1) are not, or (2) are not yet, or (3) are no longer persons. Rather, we will affirm that every member of the human family, irrespective of age, size, location, stage of development, handicap, or condition of dependency, possesses (if any member possesses) inherent worth and dignity. None lack a right to life; none may justly be treated as less than equally worthy of respect and concern.

Of course, that leaves the question of what, if anything, makes human beings special as bearers of a unique dignity, such that we are (to borrow Kant's formulation) morally obligated to treat ourselves and others as ends, and never means only. The answer, it seems to me, has to do with our nature as rational creatures---creatures possessing the (quite literally God-like) capacities for deliberation, judgment, and choice. The error made by many who defend abortion, infanticide, and euthanasia, it seems to me, is to suppose that the relevant "capacities" are the immediately exercisable capacities for characteristically human mental functions, as opposed to the basic natural capacities for reason and freedom--capacities that human beings come to possess in radical (=root) form simply by coming into being, and which they do not lose except by ceasing to be (by dying). The principle of the radical equality of all human beings, which is at the heart of the sanctity of life ethic and much more in our culture, and which, in my opinion, is the glory of our civilization, reflects the insight that it is indeed the basic natural capacities, and not their full flowering in the form of immediately exercisable capacities, that is the ground of our dignity.

I defend these claims, and respond to what strike me as the strongest arguments against them, in an article entitled "Embryo Ethics" that appeared in the Spring 2008 issue of Daedalus. Here is a link:


February 28, 2012 | Permalink | TrackBack (0)

On Being a Body / On Partaking of a Life Form / and On the Giving of Life of this Form for the Sake of Lives of This and Other Forms

When I was an undergraduate, a number of what struck me as mutually supporting factors prompted me to convert to 'Popery,' as most of the American Founders, alas, would have called it - and as many, double-alas, would have denounced it.  Two of these factors, both of which seemed to me somehow to be especially deeply connected, were also especially compelling. 

The first such factor was that I seemed always to see humbly dressed folk in faded bluejeans and plaid shirts delivering boxes of donated items to the food & clothing pantry operated by St. John's Catholic Parish in Lawrence, Kansas, whose parking lot lay across the street from my window.  The same humbly dressed folk, still humbly dressed, could then be found at Sunday mass, which I attended a few times as a curious onlooker, then as a guest.  I was struck by how these humble yet generously giving people seemed to treat Sundays and other days as being in a sense continuous - as being of a piece - and in so doing seemed to treat their liturgical lives and their giving lives as being both of this selfsame piece.  The parishoners, in other words, did not doll up on Sundays and strike worshipful postures, then dress down on other days and forget about Sundays.  They dressed the same, and in a certain crucial sense acted the same, on all days - worshipping throughout the week, in effect, with the shape taken by their worship just slightly differing between Sundays and other days.  'Just slightly' in view of the second factor that somehow moved me...

The second factor was that there was always a corpse represented on the cross in these peoples' church.  Corpse, corpor, corporeal.  A dead body.  For some reason that really hit me.  It seemed important.  The fellow whom these people worshipped and wept for had a body.  He was a body.  Somehow that made the whole thing more 'real' to this perhaps primitive, over-tactile, just-post-adolescent in a way empty crosses at other churches I'd visited by this point did not.  (I might have mentioned something about this in my very first post here some several years back.)  I know that the empty cross at these other places is said to represent a triumph - 'He is risen!' - and all of that; and sure, I buy it.  But for some reason I still needed the body.  (Habeus corpus!)  And, what was more, that broken body seemed somehow connected to the broken people for the sake of whom the congregants throughout the week were dropping off all of those boxes of supplies.  And both that body and the broken people whom it seemed connected to seemed also to work as reminders that we all are broken in our ways, just as surely as we're beautiful and God-partaking.  It was in this sense, then, in addition to the sense made manifest in the non-changing mode of their dress throughout the week, that these people's Sunday and weekday forms of worship seemed to me continuous - always variations on one unifying theme.

And so I converted. 

(Just, as it happened, before going off to Oxford, where I (a) quickly joined Michael Dummett's 'other parish' (St. Aloysius, on Woodstock just past St. Giles, then parish of the then-long-since laid-off Leyland laborers and now rather more opulent home of the Oxford Oratory, where the Prof and I often bumped into each other when we weren't at Blackfriars (more on all of which some other time)), and (b) first met our Tom (who kindly welcomed me by knocking at my door the very day I arrived).)

Now it seems to me, believe it or not, that all of this bears quite directly upon - and is born quite as directly upon by - several subjects that have figured importantly in discussions here at our site in the past several days. 

One such subject, to which I will confine myself for now, is of course this matter of 'post-birth abortion' as advocated by these two strange (Swiftian?) authors whose recent peer-reviewed article Robby has shared with us.  I gather, from an admittedly cursory reading, that the authors advocate allowance of this form of homicide on the same ground that many advocate allowance of more conventionally understood abortion - essentially, on grounds that it is 'persons,' understood in a particular sense to which I shall attend in a moment, whom legal and moral rights aim to protect, while foetuses and newborns are not yet persons in the requisite sense. 

For some reason - a reason I'll hope now I might come to understand better by writing - I have never quite managed to find force in the argument from 'personhood.'  And really, I've tried.  This has been so ever since first I encountered what I think was a rendition of the argument in (the often wonderful) Professor Dworkin's book of 1993.  (Life's Dominion, if I recall correctly, which might better have been titled Personhood's Dominion?)  Moreover, for what I now suspect might be the very same reason, I have never been able to find force in what seem to me cognate arguments offered by some other philosophers, notably David Velleman, to the effect that cows' and other animals' lives lack value.   Somehow all such arguments always have struck me as what I have often been tempted, for reasons I could not in the past and perhaps still cannot satisfactorily articulate, to think of as 'thin,' 'insufficiently dense,' 'non-viscous,' even 'desert airy' or altogether 'vacuous.'  An impression of a sort of 'unbearable lightness of nonbeing' seemed to accompany my reading them.  They seemed 'conjuring-trick-like' or 'insubstantial' relative to what they purported to be about - life, be it human or other animal life - even if 'deep' or insightful relative to what they were actually about - personhood, understood as something that is in fact categorically distinct from life even if dependent upon life as its essentially comingled substrate when 'embodied.'  Something just seemed to be missing or left out of account.

Trying to make sense of those impressions now, what I seem to come up with is something like this:  What the arguments all appear to have in common is two theses, the second of which builds upon the first but the first of which doesn't seem quite to register with me, at least relative to the argumentative purpose for which it is deployed.  This first thesis is sometimes labeled 'value-internalism,' and has it that what is valuable in connection with some creature is only what can be valued, per some form of consciousness how ever rudimentary, by that creature.  The second thesis is sometimes labeled 'wholism' but might better be labeled 'narrativalism,' and has it that a life - a full, temporally extended life - can be ('internally') valued by the creature living that life only insofar as the creature in question possesses a conception, or, in a more Kantian idiom, a 'representation,' of that life.  Put these two theses together and you reach the unsurprising conclusion that 'the life,' qua life, of a creature lacking in consciousness of its own life as a temporally extended, narratival whole is ... valueless.

Now as suggested, I think that those who argue that cows' and other creatures' lives are devoid of value along these lines, on the one hand - people like Velleman - and those who argue that unborn and newborn humans' lives are devoid of value along such lines, on the other hand - people like Dworkin circa 1993? - are all in essence making the same argument.  And somehow I find it ultimately unpersuasive in both cases - largely, I think, for reasons given here, in an argument that I offered in defense of animal rights against Vellemanians just around the time that I first joined this site.  (How do you like that?  I'm defending animal rights, as Singer has notably done, on the basis of an argument - more on which in a moment - that if correct means that Singer is wrong about infanticide.)  The argument is titled What's the Harm? 

So, what's the harm?  And what's unsatisfactory about 'internalism' as characterized above?  Well, the short-playing version to which I confine myself here is that I think it appeals to the wrong 'kind' or 'level' of internality, so to speak.  Harm to a particular kind of creature - a creature that exemplifies a particular life form - it seems to me, can only be understood by reference to characteristics that are internal to (characteristic of) that creature's form of life, rather than by reference to experiences that are internal to (registering on) its form, how ever rudimentary or minimal, of consciousness.  Such forms of consciousness, how ever rudimentary or sophisticated, are surely internal to (characteristic of) the forms of life with which they are associated, but they don't exhaust those forms; and waxing or waning, flourishing or withering, pertain to all characteristics, not just the consciousness characteristics, that are internal to the form.  Indeed they pertain not only to all such characteristics, but to all of those characteristics as ordered in relation to one another in the manner constitutive of the form.  'All characteristics ensemble,' we might say.  And that is ultimately because waxing and waning, flourishing and withering all pertain to the form itself, not just to individual or heaped up but unordered features of the form.

Hence it is cows as whole lives organically constituted by all of those integrated characteristics that are integratedly characteristic of cows that wax and flourish under some conditions, and wane and wither under other conditions.  And the same goes for all other forms of life - all of these remarkable, beautiful, gorgeous, miraculous forms! - the particular conditions of waxing or waning varying with the particular forms.  And to impose conditions upon cows, cats, crows, or other critters that prompt their waning or withering rather than their waxing and flourishing - always understood in this full, organic, 'qua cow' or 'qua crow' sense - in turn, seems to me to be always prima facie wrongful unless there is some quite compelling reason to do so - reason that itself sounds in life, and reason that does not needlessly or gratuitously or cavalierly subordinate some lives to other lives.   

Now human beings, of course, wax and flourish under different conditions than do other creatures, though of course there is significant and growing overlap between the sets of conditions as we proceed from forms of life that bear less, to forms that bear more, in common with human life.  And of course the same goes for waning and withering.  And narratival consciousness, like deliberative rationality and conscience and a host of other oft-described 'higher' human functions, is of course a particularly prominent characteristic among all of those countless characteristics that jointly constitute the human form of life.  That of course renders it not altogether surprising that some might find themselves sometimes becoming a bit absent-minded about some of our characteristic features and then finding themselves tempted in effect simply to equate human life to that one characteristic of human life that is narratival self-representation, or to equate value in connection with that life to value in connection with the living human human being's self-conscious 'internal' representation of that life.  But the fact is that this form of consciousness is, still, only one of the many all-internally-ordered, organically constitutive characteristics of a human life, and there seems no reason what ever to interpret 'value' solely by reference to that characteristic alone rather than by reference to the whole lifeform of which it is only one critical characteristic.   

It also seems to me, on essentially the same grounds as seem to me to underlie all that I just said, that early, late, and intervening 'phases' or 'stages' of a life of some form, rather like the organic or constitutive characteristics of that form, all must be understood as resting in deep (and again deeply ordered) organic unity with one another.  All such stages, just like all constitutive characteristics, are jointly constitutive of the form of life in relation to which they represent or amount to stages.  If this is right, then it is no more permissible to inflict unjustified harm - harm, again, as understood relative to the life form in question - on a particular creature in its 'early' or 'late' life than it is to inflict such harm on that creature in its 'middle' life.  For harm is always done the creature - the creature as a representative instance of the life form - not to the 'creature-phase' as a representative instance of ... what?, that phase alone?   One helps or harms the creature in one of its phases, one doesn't help or harm the phase.

To think otherwise than as I've just suggested, it seems to me, is effectively to fall into a sort of category error not unlike that of those amusing late 18th Century 'empiricists' and early 20 Century 'positivists' who took themselves to be seeing 'apple-sides' and 'color patches' rather than seeing apples and colored objects, or to be tasting 'pineapple tastes' rather than pineapples.  The living creature is neither merely one of its characteristics nor merely one of its stages or phases.  The characteristics and stages are characteristics and stages of the creature; and it is the creature, not the characteristics or stages, that will wax or wane, flourish or wither, be accorded respect or be gratuitously and unjustifiably harmed.  

Once we move, then, as I believe that we must, from 'internalism' understood by reference to consciousness alone ('internality to consciousness') to 'internalism' understood by reference to life form which might but need not bring with it some particular degree n of consciousness ('internality to form'), arguments like Velleman's against the value of bovine life, and 'Minerva's' against the value of owl ... er, human life seem to me both to show themselves for head-scratchingly arbitrary if not outright category-inapt.  For once we take the conceptual step that I am describing, we see the various forms of consciousness experienced by creatures of various forms simply to be aspects of living those various life forms rather than identical to or exhaustive of those life forms, while value for its part pertains always to forms rather than to aspects of forms.    

All right, so maybe you can see how this all takes us back to where we began.  Why do I find the argument from personhood, and with it Vellemanian (psychological or proto-psychological) 'internalism' plus 'wholism,' somehow 'thin' and 'vaporous' - 'bloodless,' as it were?  I think it is probably because in a sense it is bodyless, just like those Christless crucifixes that left me so cold.  The same thing that made that body on that Cross at St. John's Parish in Lawrence somehow 'resonate' with 'me,' in other words, seems to be what prevents the argument from personhood from thus resonating.  Our embodiment would seem to be essential to who and what we are; and what has value in our judgement, it would seem, must accordingly itself relate back to embodiment.  And that in turn means that it must relate back to that life form  which our embodiments themselves instantiate - indeed, which they incorporate. 

I suspect that deep and subarticulate appreciations along such lines as these might account for why the promise of a resurrection, which we're soon again to celebrate this season, rather than less specified 'eternal life' is what matters to us.  (Hmm, ... 'matter' ...)  It's why the Hebraic tradition which has it that we rise on Judgment Day rather than convert to ghosthood and hover about is the tradition with which we claim continuity.  And it's presumably also why Platonic metampsychosis, disembodied spirithood, being a brain in a vat, and so forth are all so nonbloody unappealing.  We won't settle for being merely 'persons.'  That's not what we value.  We 'want it all' - human life, in all of its wondrous stages, through all of its course, with all of its many defining features, in all of their organic, gorgeous, unspeakably beautiful unity.  Wholeness of the life.  That is what we value, and it seems to me it is that - that at the very least - by reference to which we so much as understand value.  

For the same reasons, we don't settle for regarding those whom we love, whom we care for, whom we ... yes, even defend ... as being merely 'persons,' let alone 'person-parts,' 'person-phases' or 'life-stages.'  (Again, we taste apples, not 'apple-tastes.')  They are lives, whole lives, partaking of life forms that we also understand as wholes - integrated, ordered, internally structured and arranged, organic wholes.  And this shows up in what we give, especially when we give out of love.  Those people who dropped off those items every day at St. John's Parish dropped off items usable by human beings, whole human organisms, not just persons.  They brought foodstuffs, drink, clothing, blankets, and the like - things that body-beings need.  Sure, there was 'food for thought' and 'food for conscious play' as well, inasmuch as they brought books and magazines and boardgames and the like.  But that's just the point.  They brought all of it - just as those who donate things to 'animal shelters' and the 'humane society' donate food and bedding and 'playtoys' alike - things associated with the flourishing of, hence with what is valueable to, the per se valuable recipients along all of the multiple dimensions of their living, their flourishing, their faring well.

I think, then, that we might do well in this season of Lent to remember that we are all of us bodies, partaking of a certain beautiful form of life, all the time giving of our very lives of this form for the sake of lives of both this and other forms.  In that we are doing, of course, what that Fellow who was that body on that cross did over two thousand years ago, for eternity.  

Again a deep restorative Lenten season to all.                 

February 28, 2012 | Permalink | TrackBack (0)

Pre-Birth, 'Partial Birth,' and Post-Birth: An Anecdote

Robby's, Michael S's, and my own recent posts here since last evening bring back to mind a conversation with a dear progressive lawyer/mentor friend from some years' back.  When I was clerking on the 10th Circuit for a judge whose chambers were in Lawrence, Kansas a bit over ten years ago, Nebraska, I believe, either enacted or came close to enacting a bill prohibiting what was often then called 'partial birth abortion.'  The prospect of a challenge to that law and/or others like it under the Supreme Court's 1992 Casey standard was of course widely discussed.  About that time I lunched one day with two lawyer friends, one of whom was the mentor mentioned above - I'll call him 'Friend.'  As our conversation turned to these 'partial birth abortion' laws, Friend wondered aloud how best to challenge them, as he thought them likely to withstand constitutional scrutiny under Casey but was also being asked, I believe, to represent some prospective plaintiffs who were wont to challenge them.  I was surprised by Friend's belief that these laws would easily stand under Casey.  'Isn't it clear,' I asked, 'that these laws will not withstand even rationality review, let alone the more regulation-permissive Casey standard?'  'How do you mean?,' he asked.  'Well,' I said, 'if foetal lives may legally be terminated while foetal feet are in the womb, what plausible reason can be given for prohibiting that termination when feet are out of the womb? Is there, in other words, any rational distinction what ever to be drawn between immediate 'pre-birth' and 'partial birth?'  Friend looked at me with some surprise.  'But I thought you were one of those "respecters of life,"' he said.  'By Jove, I think you've got it,' I replied.  

Incidentally, Rick's colleague John Nagle had earlier clerked for the same 10th Circuit judge to whom I allude here.  While teaching a mini-course at their fine institution a couple of years ago, I joked to John that I knew his bare chest better than did any of his colleagues, probably, as our judge's chambers kitchen was bedecked on every wall with photos of John tossing his sweet children about in lakes and streams and other bodies of water.  Let me take this occasion, then, to say I'm glad that they were born!     

February 28, 2012 | Permalink | TrackBack (0)

Hittinger on Maritain's Scholasticism and Politics

The Liberty Fund has republished one of Jacques Maritain's important and prescient books, Scholasticism and Politics (publisher's blurb below), accompanied by this interview with Russell Hittinger that's well worth a listen.

Scholasticism and Politics, first published in 1940, is a collection of nine lectures Maritain delivered at the University of Chicago in 1938. While the lectures address a variety of diverse topics, they explore three broad topics: 1) the nature of modern culture, its relationship to Christianity, and the origins of the crisis which has engulfed it; 2) the true nature and authentic foundations of human freedom and dignity and the threats posed to them by the various materialist and naturalistic philosophies that dominate the modern cultural scene; and 3) the principles that provide the authentic foundation of a social order in accord with human dignity.

Maritain championed the cause of what he called personalist democracy—a regime committed to popular sovereignty, constitutionalism, limited government, and individual freedom. He believed a personalist democracy offered the modern world the possibility of a political order most in keeping with the demands of human dignity, Christian values, and the common good.

February 28, 2012 in Moreland, Michael | Permalink | Comments (0) | TrackBack (0)

It is not surprising that Peter Singer is no longer alone in advocating infanticide

Thanks Robby and Bob for your posts (here, here, and here) on the peer reviewed article advocating legalization of infanticide.  The article's abstract sums it up arguing "that what we [the authors] call ‘after-birth abortion’ (killing a newborn) should be permissible in all the cases where abortion is, including cases where the newborn is not disabled."

This really isn't surpring to me. 32 years ago an editorial appeared in California Medicine, a publication of the Western Journal of Medicine. (I have a pdf of the original on file) It begins:

The traditional Western ethic has always placed great emphasis on the intrinsic worth and equal value of every human life regardless of its stage or condition. This ethic has had the blessing of the Judeo-Christian heritage and has been the basis for most of our laws and much of our social policy. ... This traditional ethic is still clearly dominant, but there is much to suggest that it is being eroded at its core and may eventually even be abandoned. This of course will produce profound changes ... in Western society.

[In the new ethic, which] will of necessity violate and ultimately destroy the traditional Western ethic ... [i]t will become necessary and acceptable to place relative rather than absolute values on such things as human lives, ... This is quite distinctly at variance with the Judeo-Christian ethic and carries serious philosophical, social, economic, and political implications for Western society and perhaps for world society.

Since the old ethic has not yet been fully displaced it has been necessary to separate the idea of abortion from the idea of killing, which continues to be socially abhorrent. The result has been a curious avoidance of the scientific fact, which everyone really knows, that human life begins at conception and is continuous whether intra- or extra-uterine until death. ... It is suggested that this schizophrenic sort of subterfuge is necessary because while a new ethic is being accepted the old one has not yet been rejected.

One may anticipate further development ... as the problems of birth control and birth selection are extended inevitably to death selection and death control whether by the individual or by society, and further public and professional determinations of when and when not to use scarce resources.

February 28, 2012 in Scaperlanda, Mike | Permalink | Comments (16) | TrackBack (0)