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.

Sunday, July 29, 2012

The Church's social teaching and criticizing current social-welfare programs (updated)

I join Michael Sean Winters is thinking that Catholics in the public square -- especially those of us who are interested in law and politics, and engaged in policy debates -- should be especially careful to avoid partisan hackery (by which I mean something like the practice of employing arguments and investigating and presenting facts not with an eye toward figuring out what is the best thing to do, but in order to gussy up one's prior decision to do what one can to promote a partisan agenda).  (Of course, it's always easier to see hackery on display in the interventions of those with whom one disagrees.  And, hackery should be distinguished from error.)

I disagree, though, with what seems to be his suggestion that it constitutes an "attack" on, or "dissent from", the Church's social magisterium to say, as George Weigel did recently, that "Catholic default positions in favor of shoring up, even expanding, the post-World War II American social welfare state must also be re-examined because of certain undeniable realities. Catholic social doctrine is a tradition of moral realism: it takes facts seriously."

The Church's social teaching, in my view, is communitarian, but not collectivist.  It emphasizes society, but it is not statist.  It proposes an account of the person -- a moral anthropology -- in which relationship, embeddedness, solidarity, and dependence are emphasized, but insists at the same time on the equal dignity, the transcendant dignity and destiny, and the freedom (correctly understood) of every individual person. 

So, as I see it, Catholics whose politics are on the "progressive" left have to be careful not to equate the Church's affirmation of "society" with a default preference for government or state action.  And, Catholics whose politics are on the "conservative" right have to be careful not to allow an appropriate apppreciation for the facts that the society (like the family and the Church) is prior to and different from the state, the competence and legitimate authority of which is limited, to become a crude, knee-jerk, anti-government stance.

It cannot be the case -- and it is not the case -- that embrace of the Church's social teaching and magisterium requires, or even advises, us to support current policy with respect to, say, social-welfare programs and spending, or public-sector unionism.  It is sometimes hackery, but in any event it's mistaken, to assert (as some in recent months have done) that, "because the Church supports unions, it's contrary to Church teaching to criticize public-employee unions," or to claim that "because the Church teaches that the political community has an obligation to the vulnerable, it's contrary to Church teaching to express concerns about the costs, efficiency, and long-term sustainability of current social-welfare-spending practices." 

It is entirely possible -- and it is not "dissent" from the Church's teaching to say that it's possible -- that, as Weigel suggests, the post-World-War-II social-welfare state is in trouble (and not simply because the "1%" are allegedly failing to pay their "fair share") and that Catholics, Catholic leaders, and Catholic bishops should be thinking about whether new, creative, sustainable models for promoting the common good and protecting the vulnerable are warranted and possible.   

Of course -- as the President might say, "let me be clear":  It is not the case that we should, or that Catholics may, give up on solidarity or on using political and other resources and power to care for the vulnerable.  No one is saying that.  We might well conclude that the current regime, all things considered, works well enough, and that it should be retained and repaired, rather than re-imagined and re-invented.  But, we might conclude otherwise.  (We should certainly conclude otherwise with respect to the "teacher-unions v. school choice" debate.)  It has to be, though, (if we hope to avoid hackery) that whether or not a proposal is sound, and whether or not it is authentically "Catholic", does not depend on the extent to which it is consonant with the status quo, or the platform of the Democratic, or Republican, Party in 2012.  (Yes, this is true whether we are talking about Medicaid, or about comprehensive immigration reform.)

UPDATE:  To say what I said above is not to say that any particular Republican politician or proposal is correct.  I wouldn't have thought this needed to be said, but some e-mails I've received make me think that maybe it is.  My point is, I think, a pretty general one:  It's not the case that calling into question our current social-welfare, taxation, and public-sector-union-related policies and practices -- on the ground that they, or some parts of them, are unsustainable, inefficient, ineffective, or unjust -- constitutes "dissent" from, or an "attack" on, the Church's social doctrines.  I embrace entirely -- at least, I do the best I can to understand, embrace, and apply them -- the Church's social teachings and their premises. 

UPDATE:  Winters responds to me, here.  Hey, he spells my name right!  (insert smiley-face emoticon here.)  Like Winters, I think it is important to identify and engage what he calls "the political realities", but he and I have a very different understanding, it appears, of what those realities are. 

UPDATE:  And, Charlie Camosy responds, here.  Charlie's last paragraph, I think, suggests an equivalence -- one that, in my view, we should reject -- between "prudential" judgments when it comes to social-welfare programs (i.e., "what's the best way to set up a taxation-and-social-welfare-spending regime in order to, all things considered, get the best results?") and the "I'm pro-life but think we should continue excluding unborn children, because they are unborn, from the protections the law provides to other human beings against lethal violence" position. 

So, Charlie asks, "It would also be interesting to see if Weigel (and Garnett) would accept the same doctrine/policy distinction when it comes to life issues."  I would not accept it, and don't think that I should, and I wouldn't have thought Charlie would, either.  It's not, in my view, the "same doctrine / policy distinction."  Certainly, I agree, to identify a moral truth is not to identify the best, let alone the morally required, policy or law.  The Church does not purport to teach what is the best way to structure, all things considered, a taxation regime.  It does teach, though, that it is fundamentally unjust to discriminate, in the way that our abortion laws do, against one class of human persons.  It's an old argument, I realize -- it's one that we kicked around a lot during the run-up to the last election, when then-Sen. Obama was characterized by some as the pro-life candidate.  But, in my view, to be "pro-life" is not only to think we should hope for, and try to find strategies for, reducing the number of abortions; it is also -- I believe it has to be -- about rejecting the anti-Catholic premises about human dignity and equality that our abortion laws reflect.  (This is a different question from the "for which candidate, given all the givens, should we vote?" question.)

STILL MORE UPDATES:  Charlie Camosy responds to my update, here.  I think he is wrong, though, when he writes this:

[C]an we really say that her support of pro-choice laws and justices (on the basis described above and no other) dissents from Church doctrine?  At least if we set up the doctrine/policy relationship the way that Garnett and Weigel have done, it seems that she has not.  Our disagreement with her is about practical matters of public policy, something about and over which Garnett and Weigel claim the institutional Church has no particular expertise or authority.

Again, I think Charlie is employing a comparison, and suggesting an equivalence, that does not work.  The Church does teach that the positive law should protect unborn children from lethal violence; it does not only say "abortions cause the deaths of human beings and public policy should aim at reducing their number."  For example, at Pars. 2270 ff., the Catechism provides (among other things) that:

"The moment a positive law deprives a category of human beings of the protection which civil legislation ought to accord them, the state is denying the equality of all before the law. When the state does not place its power at the service of the rights of each citizen, and in particular of the more vulnerable, the very foundations of a state based on law are undermined. . . . As a consequence of the respect and protection which must be ensured for the unborn child from the moment of conception, the law must provide appropriate penal sanctions for every deliberate violation of the child's rights."

The legislator Charlie hypothesizes is voting to prevent the positive law from doing what the Church teaches it "must" do, it seems to me.


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" [I]t is also -- I believe it has to be -- about rejecting the anti-Catholic premises about human dignity and equality that our abortion laws reflect."

Anti-Catholic? Or un-Catholic? "Anti-Catholic" seems to me a very loaded word.

Posted by: David Nickol | Jul 30, 2012 9:33:00 AM

To deny that from The Beginning, God created every Human Individual (definition of person) equal in Dignity while being complementary as male and female, would be anti Christ, and thus would be opposed to The Universal Truth of Love and His Universal Church.

Posted by: N.D. | Jul 30, 2012 11:55:12 AM

David, I mean "premises that are not only inconsistent with, but seem to be in conflict with, the Catholic proposal."

Posted by: Rick Garnett | Jul 30, 2012 12:18:42 PM

As usual, Prof. Garnett, your clarify, elucidation & charity are appreciated. I have sent this column to many of my "progressive" Catholic friends who are astonished at my support for the Republican party (on non-Tea Party grounds).

I think MSW does a decent job defending his position, but like you I am astonished at the lip service he pays to the serious fiscal condition programs like Medicare, etc. are in. I would think a good Democrat would want to read, say, the Bowles-Simpson report, and not be accused of wanting to "give up on solidarity or on using political and other resources and power to care for the vulnerable".

Posted by: Josh | Jul 30, 2012 12:48:44 PM

It seems that questions about government social policy intrinsically include discussions of the distribution of material goods about which reasonable Catholics can disagree. A discussion about abortion laws does not have the same issue and the arguments seem to have a 'personally opposed but...' character to them.

Posted by: Bruce | Jul 30, 2012 2:36:39 PM


I really don't see anything much in Catholic teaching that specifies what the law ought to be on abortion. I think it is accurate to say that the Church teaches that abortion should not be legal. But aside from that, it's not clear to me what the law should say about abortion. Should the law prohibit abortion but be rarely if ever enforced (as is the case with polygamy in Utah)? Should abortion be homicide under the law? Should women who procure abortions suffer any legal penalties? What would a model Catholic anti-abortion statute look like? And then there are practical questions, such as what those who oppose abortion should do if it does not seem politically feasible to criminalize abortion. Should they go for some kind of grand compromise? The whole question seems to me to require about as many prudential judgments as any other legal matter, even though the Catholic teaching on abortion itself is absolutely binding.

Posted by: David Nickol | Jul 30, 2012 4:32:08 PM

If we ask enough questions about something we can be sure to confuse ourselves.

Posted by: Bruce | Jul 30, 2012 6:00:38 PM


And if we oversimplify, we have pat answers for everything.

Posted by: David Nickol | Jul 30, 2012 7:34:10 PM

Hi David,

Seconded your last comment.

Posted by: Ed Dougherty | Jul 31, 2012 8:31:35 AM

Is a Catholic legislator or voter required to believe that Roe v Wade and other decisions of the Supreme Court regarding abortion were wrongly decided? Is a Catholic legislator who believes Roe was *not* wrongly decided obliged to vote for restrictions on abortion that he or she believes to be unconstitutional?

A question that has never been answered to my satisfaction is what are the duties of the six Catholic justices on the Supreme Court. They have it within their power not just to overturn Roe v Wade, but (as I understand it) strike down all abortion laws by declaring abortion a violation of the 14th Amendment. Scalia says he interprets "persons" in the 14th Amendment as "walking around persons" rather than unborn persons, and consequently can't vote to ban abortion under the 14th Amendment. Can he be considered objectively wrong in that judgment, and if so, why should there be no pressure on him either to change his mind or resign.

Is a Catholic justice on the court who believes Roe was wrongly decided obliged to vote to overturn it? What if he or she believes it should be left standing because of the principle of stare decisis?

What exactly are the obligations of the six Catholic Supreme Court justices when it comes to abortion?

Posted by: David Nickol | Jul 31, 2012 9:04:01 AM

David, that's an important question. Roe *was* wrongly decided, but it is wrong as constitutional law, and not only because it entrenches laws and policies that are substantively unjust. A Catholic legislator who thinks Roe was, as a positive-law question, correct has made a constitutional-law mistake, not a theological one. I also think that a justice (Catholic or not) who thinks Roe was wrong should vote to overturn it, the (important) idea of "stare decisis" notwithstanding. And, I think the question whether it violates the 14th Amendment to *allow* (direct, intentional) abortions -- that is, to deny the homicide laws' protections entirely to unborn children -- is a hard one; at present, I think reasonable people (and justices), Catholic or not, can disagree about its answer.

Posted by: Rick Garnett | Jul 31, 2012 9:28:43 AM

On the obligations of Catholic judges, take a look at the excellent analysis by Edward A. Hartnett (Seton Hall), Catholic Judges and Cooperation in Sin, 4 Univ. of St. Thomas L.J. 221 (2006), available at http://ir.stthomas.edu/cgi/viewcontent.cgi?article=1113&context=ustlj .

Posted by: Kevin C. Walsh | Jul 31, 2012 9:47:48 AM


Aren't Catholic legislators entitled to make up their own minds as to whether Roe was wrongly decided?

As for the six Catholics on the Supreme Court, what should they *do*? I am by no means an expert on constitutional law and the workings of the Supreme Court, but isn't it the case that if Roberts knew he had four other votes to overturn previous abortion decisions, he could send out signals to let it be known, and he and his fellow justices could choose a case that would give them the opportunity to rule?

The Supreme Court has it within its power to undo all previous abortion decisions. What are its obligations?

Posted by: David Nickol | Jul 31, 2012 10:45:44 AM

David, I think that everyone is "entitled" to "make up their own minds" about everything. At the same time, some questions -- including many that people disagree strongly about -- and "was Roe right?" is, in my view, one of them.

Posted by: Rick Garnett | Jul 31, 2012 11:34:11 AM

Since it is true that every son or daughter of a human individual (definition of human person) can only be a human individual, and it is true that a human individual is the same human person in every location, then Roe v. Wade must be unconstitutional because it is a violation of The Fourteenth Amendment, which is binding at both The State and Federal level of Government.

Posted by: N.D. | Jul 31, 2012 6:54:55 PM

Not to mention, with all due respect to Justice Scalia, Justice Scalia is mistaken to suggest that a human individual is not a human individual unless he/she is walking around. It is a self-evident truth that being a human individual does not depend on one's ability or lack of ability to walk around, nor does the fact that one is not walking around, mean that person is no longer a person.

Posted by: N.D. | Aug 2, 2012 9:54:50 AM

Mr. Weigel has been dancing around in the minefield of dissent for quite some time: by carrying water for the Bush administration's Iraq war; and, trying to justify "aggressive interrogation" as opposed to torture in order to get around Church teaching (see First Things, Mar. 2009). He is a false prophet (cf. Lam 2:14) and should be called such

Posted by: Matthew W. I. Dunn | Aug 2, 2012 12:36:57 PM