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.

Saturday, September 29, 2012

Abortion at the Democratic Convention and at the Upcoming Debates

The always informative Jill Stanek recently posed an interesting question on her blog (here) responding to a column by Jonathan Last in The Weekly Standard (here).  Last notes that at their 2004 convention “Democrats kept abortion talk at their convention to a bare minimum” and they later credited this move with keeping the election close.

This year, by contrast, they put abortion front and center.  Perhaps this was to draw attention away from the economy, or perhaps because it fit so nicely with the Democratic narrative of a “war on women.”  But front and center it was.

Not by name, of course – always draped instead under the innocuous banner of “choice.”  Still, abortion was celebrated from a Democratic podium that featured speakers such as NARAL’s Nancy Keenan and Planned Parenthood’s Cecile Richards, while other speakers such as Deval Patrick, Martin O’Malley and Julian Castro mentioned it so “confidently and constantly . . . that it became something of a litany” (see here).  One might expect Catholics like O’Malley and Castro to be used to reciting litanies, but not of this sort.

No doubt this irony was lost on the Democratic abortion faithful, as was the irony that in a speech by First Lady Michelle Obama centered around motherhood and family, (a speech where she was introduced not by “a political person,” just “a mom” see here), one of the biggest applause lines was reserved for her husband’s commitment to abortion (here at 13:04).  So much for motherhood. 

Indeed, abortion was such a prominent part of the festivities that even the reliably pro-choice Cokie Roberts (also a Catholic) remarked that the convention was “really over the top in terms of abortion” (here), while the reliably pro-life and Democratic Melinda Henneberger (also a Catholic) said that “speech after speech highlight[ed] how wrong [she had] been to wince every time Barack Obama is referred to as the ‘abortion president’” (here).  Although preserving and expanding the abortion license has been an article of faith for the Democratic Party leadership since at least the mid-1970s, the alleluias devoted to abortion at this convention caused some to fittingly describe the event as an “Abortion-Palooza” (see here and here).

All of this may be to Mitt Romney’s advantage.  Polling in several swing states indicates that independent voters are less likely to vote for Obama once they learn how extreme the President is on the subject (see here), something that the press all but ignored in the 2008 election (here).

It will be difficult for the Republicans to go on the offensive on the issue when the Press is in bed with the pro-abort gang (here).  (Indeed, the press has been so one-sided in its coverage of Obama that The Onion has taken to mocking them  -- see here).

Still, Romney had better be prepared to discuss abortion as the issue will almost certainly will come up in the debates.

The question may be phrased in such a way that Romney is meant to defend his flip-flop (i.e. he was solidly pro-choice as Governor of Massachusetts and is now pro-life) and Obama will be invited to spout the same line he normally does (i.e., he supports Roe v. Wade, and will defend a woman's right to choose, blah, blah, blah) without really saying why he believes this is the right position as a matter or morality, public policy or constitutional interpretation.

Nevertheless, here I think Romney has the opportunity to counterpunch.

An obvious counterpunch would be for Romney to bring up Obama’s atrocious votes in the Illinois Senate.  But this would give the President a generous opportunity to obfuscate and mislead as those in his campaign have done (see here), and the Press can’t be counted on to fact check with integrity, and most people – if they were still listening days after the debate – would likely throw up their hands in frustration, no knowing the truth and no longer caring.  So I would not recommend such an approach.

Instead, the counterpunch could come like this.

Romney could say that “Like the vast majority of Americans, I recognize that the being growing in the womb is a human being.  Indeed, that is why considering an abortion is such an anguished decision for most women and why many experience enormous grief afterwards (see here) – they recognize that it isn’t like having a tooth pulled or one’s appendix removed.  It isn’t just a clump of cells but a child – their son or daughter!  The humanity of the developing child is not a moral or theological position, but the conclusion of science.  Why, Mr. President, do you refuse to accept this?  Why are you opposed to what science tells us?"

“During the 2008 campaign at the ‘Compassion Forum’ Mr. Obama was asked when does human life begin and he said ‘That is something that I have not . . . come to a firm resolution on.’  ‘Is it when a cell separates?  Is it when the soul stirs?’ you asked, and you concluded that you wouldn't ‘presume to know the answer to that question.’" (See here).

“Really Mr. President?  Can you honestly tell the American public that when you and Michelle were expecting and she was pregnant with each of your daughters, and you saw the ultra-sound image flicker across the screen, you withheld your judgment then, not having reached a 'firm resolution' on whether the object of your affection was a human being?  Did you say ‘We don’t know if it’s a child yet’ because we wouldn’t ‘presume to know’ whether or not the soul had yet ‘stirred’?  Or did you exclaim with joy ‘That’s our baby girl!’?  Mr. President, I think we all know that the being growing inside his or her mother’s womb is a human being.  The difference is I think that innocent human life should be protected and you don’t.”

Some people might think this is too personal, and intrusive, and would make Obama a victim

Perhaps so.

Still, there are ways Romney could say the same thing in a less personal way addressed to Obama.  He could say “Most women, most men, most Americans, when they see the ultra-sound image – they know it’s not just a clump of cells.  It’s a human being.  Even in the early weeks of the pregnancy the technician can point out features and say ‘Here is the heart, here is the brain, here is an arm or a leg.’  It’s a child, and we know it, even if it doesn’t appear like a fully formed infant at birth.  They know this, and I suspect you and your wife had the same reaction ‘There’s our baby girl!  There’s our daughter!’  Well that reaction isn’t a matter of someone’s subjective judgment, or their religious beliefs as you have implied.  And it isn’t just an emotional response, though it is a recognition weighted with emotion.  No.  That judgment, that conclusion is an empirical judgment – a judgment reflected in the leading texts on human embryology used in America’s medical schools – a judgment that is confirmed with our own eyes.  And I believe that because it is a human being, because it is a human life, it is entitled to protection under the law.”

Responding to the question of abortion in this fashion would of course give voice to a deep truth that lies at the foundation of Catholic social teaching.  To hear this voice in the public square could not help but be a good thing for the American electorate.

September 29, 2012 | Permalink | Comments (26) | TrackBack (0)

Friday, September 28, 2012

original intent -- and why law is not a "message in a bottle"

Marc DeGirolami rightly wonders who *still* defends orginal intent originalism.  I do, including in this recent paper.  As I see it, all of the alteratives amount to giving the lawmaker less than his due. Messages in bottles are, at best, information; they are not laws.  Law is in the mind of the lawmaker (and promulgated), not black marks on a scrap in a bottle.

September 28, 2012 in Brennan, Patrick | Permalink | TrackBack (0)

Drakeman on Original Meaning, Original Intent, and Religious Liberty

I wanted to point readers to this post by Donald Drakeman about original meaning and original intent.  Don raises a number of points that I've been having a hard time wrapping my mind around with respect to the contemporary discussion of new (or new new) originalism.  First, are there still advocates (besides Don) of the utility of original intent originalism floating about?  I think there are (Larry Alexander comes to mind, and I have a memory of something on this by Steve Smith, too) but they seem to be grossly (and increasingly?) outnumbered by original meaning originalists.  I should also note that Don, from my reading of his work, is not exclusivist about original intent.  He simply thinks it might be useful evidence to consider.  Second, is what Don says about the equivalence between the substantial underdeterminacy of original meaning originalism and original intent originalism accepted by original meaning originalists (see Don's example about the varying interpretations of establishment in Massachusetts and New Hampshire, and for more examples, see his book)?  There may, of course, be reasons to opt for original meaning over original intent (though the hypothetical time-traveling law professor analogy presents its own problems), but isn't Don right that mitigating the problems of underdeterminacy surely is unlikely to be one of them?  

September 28, 2012 in DeGirolami, Marc | Permalink | Comments (3) | TrackBack (0)

"Religious Freedom and the Constitution" at Ohio University

Here -- on the off chance that anyone has way too much time on their hands and feels like hearing about religious freedom and church-state relations from some bald guy who talks too fast and is using my name -- is the video of my "Constitution Day" lecture at Ohio University last week.  I really enjoyed the trip, and the gathering.

September 28, 2012 in Garnett, Rick | Permalink | Comments (0) | TrackBack (0)

Thursday, September 27, 2012

The Awesome Power of the Mirror of Justice

We post on the Mirror of Justice about the vital need to restore expertise in football refereeing to the National Football League.  And, within 48 hours, the lockout is ended and the veteran officials are returning to the field.  Our prayers were answered, and our boycott was heard.

While the negotiators are understandably close-mouthed about what exactly went on behind closed doors after the Monday night fiasco, I am confident that the arguments about natural law, the common good, and labor solidarity raised here on the Mirror of Justice weighed heavily on each of the participants and compelled them to come together in a fair agreement. Biggrin

In any event, it sure turned out to be a very short boycott.

If only the other subjects of our posts could be resolved so neatly and quickly!

September 27, 2012 in Sisk, Greg | Permalink | TrackBack (0)

Archbishop Chaput on the topic of "No King But Caesar"

The Most Rev. Charles J. Chaput, O.F.M. Cap., Archbishop of Philadelphia, delivered the keynote address at the recent Seventh Annual John F. Scarpa Conference on Law, Politics, and Culture at Villanova University School of Law.  The Law School's largest room could not nearly contain the people who came to hear Archbishop Chaput; his keynote address had to be simulcast to another large room.  Among the other speakers were Gerry Bradley, Peter Steinfels, Helen Alvare, Michael J. White, H. David Baer, Fr. Bryan Hehir, and yours truly.  Most of the conference papers, including Archbishop Chaput's paper "No King But Caesar," will be published in the Villanova Law Review. Below is a sneak preview of what the Archbishop had to say.  It's not for the timorous -- or rather it is, in a profoundly challenging way, intended for those of us who sometimes hesitate to do what the Second Vatican Council taught (in both Lumen Gentium No. 31 and Gaudium et Spes No.43) that it is the obligation of the laity (and others) to do:  "to impress the divine law on the earthly city."  Archbishop Chaput said this:

"The way we lead our public lives needs to embody what the Catholic faith teaches -- not what our personalized edition of Christianity feels comfortable with, but the real thing; the full package; what the Church actually holds to be true.  In other words, we need to be Catholics first and political creatures second. 

"The more we transfer our passion for Jesus Christ to some political messiah or party platform, the more bitter we feel toward his Church when she speaks against the idols we set up in our own hearts.  There’s no more damning moment in all of Scripture than John 19:15: “We have no king but Caesar.”  The only king Christians have is Jesus Christ.  The obligation to seek and serve the truth belongs to each of us personally.  The duty to love and help our neighbor belongs to each of us personally.  We can’t ignore or delegate away these personal duties to anyone else or any government agency."




September 27, 2012 in Brennan, Patrick | Permalink | TrackBack (0)

The Vatican and the Rule of Law


On this past Monday, Archbishop Dominque Mamberti, the Secretary for Relations with States of the Roman Curia (essentially the Vatican’s foreign minister), made an important statement at the first-ever high-level meeting on the rule of law at the national and international levels at the the General Assembly of the United Nations. The archbishop’s intervention is here.

At the outset of his intervention, Archbishop Mamberti echoed the widely held concerns about the crises which the human family presently faces. But the archbishop noted that the common good is an essential basis for meeting these crises. As he pointed out, the concern for the common good serves the human family by seeking an effective and universal rule of law which is necessary for a just, equitable, and effective response to any crisis that threatens humanity universally or regionally. While some may be tempted to rely on general human rights claims that have a positivistic inclination, the archbishop noted that more is needed as the rule of law is a tool to obtain an objective that affects everyone. In this regard, he noted that the inviolable dignity and value of everyone is vital to the rule of law project. Moreover, the rule of law must inevitably be based on this reality rather than on social consensus. In other words, truth rather than compromise is needed for the rule of law that is both durable and true to its calling.

He also noted that as legal systems of the world become more complex, there can be a tendency for a proliferation of norms and procedures that can eventually become contradictory of one another. The problem with any potential or actual conflict of norms is that it will inevitably place the rule of law in jeopardy.

On another related concern, we at the Mirror of Justice have sometimes noted that the fragmentation of the educational process is counterproductive to learning. The archbishop raised a parallel concern when he commented on the of fragmentation that infects legal reasoning today. This infection has sometimes reached the point where what the law is supposed to be about—a service to all humanity—is either lost or weakened because the inalienable dignity of each member of the human family, who bears the divine imprint, is forgotten by some of the players in the formation and administration of the rule of law. This tendency can actually generate a paradox that the rule of law, which ought to protect legitimate interests of everyone, achieves the opposite.

The archbishop also acknowledged in his intervention that the rule of law must always have the objective of achieving and sustaining justice. But what is justice? Well, the archbishop provided an answer by asking the non-negotiable question of what is right and what is wrong for each and for all. In short, justice is due all because it concerns every member of the human family. I point out that the vital modifier “universal” in the context of the declaration about human rights echoes this very sentiment made by the archbishop.

He also spoke about faith to his pluralistic audience because the Charter of the United Nations mentions it. Faith for both Catholicism and the United Nations means seeking knowledge of the transcendent rather than the immediate. In this context, the archbishop reminded everyone that the human person is not self-creating. He also pointed out that the nature of every human person is a synthesis of intellect, will, and essence that reflects both the individual and the universal elements of everyone. Moreover, understanding the authentic nature of the human person is critical for the rule of law if it is to be true to its vocation. In this regard, the natural moral law rather than positivism must be the inspiration for the human law that is critical to the success of the rule of law.

At this stage, the archbishop raised his concern about the lobbies or special interests which have a strong will to achieve and implement their goals that are contrary to the welfare of the dignity of everyone and to the common good. Perhaps in this regard, he was thinking of the statement of Blessed John Paul II that even a democracy without the proper values is nothing more than a thinly disguised totalitarianism in that the concern for “me” rather than “thee” becomes the catalyst for the making and application of norms. The rule of law can never succeed when the interests of the “will of the powerful” prevail. As the archbishop stated, the rule of law will not be successful in its vocation unless it secures the “transcendent value of the human dignity” of everyone.

Another important and concluding point offered by the archbishop, which has particular application to the rule of law in the United States today, is the protection of the first freedom: the freedom of religion. When people are not permitted to exercise this essential right needed for human dignity because of the law, the rule of law has been compromised and transformed into something that menaces the society it was designed to serve and protect. This inviolable freedom is critical to the truth which serves and sustains the rule of law for everyone. As the archbishop reminded his audience, this fundamental liberty is “an inalienable hinge of the rule of law” not only for the believer but the non-believer as well.


RJA sj

September 27, 2012 in Araujo, Robert | Permalink | TrackBack (0)

"The Many Paths to Neutrality"

I've posted on SSRN the introduction that Andy Koppelman and I did to our First Amendment Stories volume (buy it now, for that special holiday / Holy Day gift!).  Here's the abstract:

This essay introduces a volume, First Amendment Stories, which the authors edited and to
which a number of distinguished scholars contributed. The authors reflect on the
tendency of First Amendment law to abstract away from specifics, and note that
free-speech and religious-liberty law and doctrines generally aim for a certain
kind of “neutrality”; in the interest of hitting that target, some
considerations that are salient to ordinary common sense are deemed not to
count. But, how is this neutrality possible? How does it ever happen that people
embrace it? What specific contexts lead courts to abstract away from both
specificity and context, to adopt positions that are neutral toward, say,
theological truth and the viewpoint of speech? Is this move – this striving –
toward neutrality justified, or justifiable? This question, the authors believe,
runs through this volume and its chapters.

It turns out that, like “equality,” neutrality has a conventional meaning, one that, in many ways, can
obscure the term’s contested, complicated, and multiple meanings. When it is not
used merely to suggest a kind of serene nonjudgmentalism, the invocation of
neutrality in conversations about law and politics is typically a shorthand
gesture toward the generally understood value of removing some issues from
political consideration, together with the arguments in favor of this removal.
Such linguistic conventions are useful. The vague term “neutrality” may either
introduce substantive argument or serve as a meaningful slogan in the many
contexts in which it is difficult to develop arguments in a careful, systematic
way. “Neutrality,” though, is a fluid term, as this volume’s several stories
illustrate. It must take its shape from its container, the specific arguments in
favor of withdrawing this or that substantive issue from politics.

September 27, 2012 in Garnett, Rick | Permalink | Comments (1) | TrackBack (0)

"Breaking Bad" and Sin

The (always great) Word on Fire site has a nice piece up by Jack Thornton on the (by far, and without a doubt) best show on television, Breaking Bad.  (On this, there can be no debate!)

September 27, 2012 in Garnett, Rick | Permalink | Comments (0) | TrackBack (0)

Lilla's review of "The Unintended Reformation"

I've read several times and admire a lot my friend Brad Gregory's book, The Unintended Reformation.  Given the book's provocative (and, I think, powerful) claims, I was surprised that The New Republic invited Mark Lilla -- a prominent scholar but one who has dedicated significant energy to establishing things about modern times that Gregory aims to debunk -- to review the book ("Blame It On the Reformation").  It seems to me that Lilla has simply refused to actually engage Gregory's claim, and that he sees Gregory's book as an "oh, for the good old days that we've lost!" book when, in fact, the book is explicitly "against nostalgia."

That said, Lilla compares Gregory's book to After Virtue.  Lilla does not mean the comparison as a compliment, but I'm inclined to think that it is.  Anyway, read the review and see what you think.

September 27, 2012 in Garnett, Rick | Permalink | Comments (1) | TrackBack (0)