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.

Tuesday, November 26, 2013

Bottum responds to Garnett on enchantment and engagement

I am very glad to report that Jody Bottum wrote up a response to my post from the either day, about the importance of staying engaged in the perhaps-tiring, in-the-trenches efforts to secure better legal protections for vulnerable people.  Here is the response, in full: 

We do have to worry a little, Rick, about class and professional assumptions here in a discussion of abortion and the culture wars.
Not to poison the well, but you’re a lawyer (and more than that: a law professor, rearing up future generations of lawyers). Why is it a surprise that the pro-life cause looks like a legal argument? The admirable Robby George is a lawyer, and the great Hadley Arkes teaches jurisprudence, and . . . and . . . . The university-professor legal types have dominated this discourse for a long, long time (admittedly with a little help from the Thomistic philosophy faculty, for whom it was a short step from discussing natural-law problems to discussing the logical shortcomings of Casey v. Planned Parenthood).
Not that other kinds of people miraculously avoid falling down the well of professional assumptions. I’m a cut-rate poet and a down-market mystic, and lo-and-behold! I find myself drawn to solutions that call on the poetry of God’s mystical creativeness in the world. However often we pick up a shoe to drive a nail or grab a dime to turn a screw, our tools tend to shape the things we try to build with them.
And yet, I will say this: In the struggle against abortion, you law professors have had the public-intellectual part in your hands for forty years. So how’s it going? Some advances, yes, and a trending of public opinion in the right direction, however murderously slowly. Remember back as late as the early 1990s, when it was common to hear praise for the actual legal reasoning in Roe? It is now routine to find even feminist law professors admitting that Roe was a slurried mess of a constitutional decision, despite its arrival at their desired result. I was there in those days, Rick, and know that the change is due entirely to the efforts of pro-life legal analysts.
But perhaps we should, in a confessional mode, ask ourselves from time to time how many babies we have actually saved. The various Born-Alive acts served to clarify the contradiction—as the Marxists used to say, and as Hadley Arkes intended—of pro-abort thinking. Still, that new clarity was not the motor for declining abortion rates, except perhaps under some theory of the psychological effect of realizing the incoherence of abortion rhetoric. I don’t tend to such Platonic knowledge-ethics myself—Gosh, I’ve been logically self-contradictory all this time; I must change my life!—but even under that un-Pauline moral theory, the connection is pretty abstract. Don’t you find yourself disturbingly sobered, Rick, by the fact that, for all our pro-life work and constant commitment, Philadelphia’s serial killer Dr. Gosnell quite possibly did more to advance the pro-life cause than you or I have ever managed?
Yes, law and policy (to use your nice hendiadys) can save lives, which is why I vote a straight pro-life ticket; offered the choice, I’ll vote for a rabid Socialist dog-catcher, if he’s pro-life, before I’ll vote for a candidate of my own economics and political party, if he sounds like a squish about killing babies.
But there are two mistakes here we can make. The first is thinking that advances in law and policy have any permanence: The pendulum swings, political gains are reversed, the House changes hands, and then what do we do? As for the second mistake, we wander into magical thinking when we suppose that law and policy can drive culture more than a little, when the culture is resistant.
After reading your commentary, Rick, I want to cry, But what about the people on the sidewalk outside the abortuaries? What about the counseling centers? What about the little old ladies in mantillas telling their beads against this evil? What about those urging us to look and see—for God is alive, magic is afoot, and the infant in the womb bears the face of the one through whom all was made?
Perhaps I misread you, when I hear you saying that only your law-and-policy ways of fighting abortion count. But then, I think you over-interpret me when I say to forget the culture-wars crap. Maybe you think I’m being willful, to find in your rhetoric a diminishment of the spiritual. But then, I think you willfully over-read me when you run to accuse me of encouraging despair on the life issues, the most obviously metaphysical of our current evils, from my suggestion that social ethics is a fallow field. The defense of the unborn, as Pope Francis writes in his new Evangelii Gaudium, “involves the conviction that a human being is always sacred and inviolable”—and notice his consistent pattern of preferring sacral terms to legal.
It is true that I’m not going to gin up an outrage anymore about the awful things they’re doing in the Women’s Studies department at Southwestern North Dakota State University (SNDSU)—the very model of a culture-wars issue over the last forty years. Someone recently leaked to me Laurence Tribe’s internal Harvard memo to Dean Elena Kagan in response to an article I wrote almost a decade ago about plagiarism in one of his books. The memo is full of juicy tidbits, including Tribe’s throwing under the bus one of his most faithful student acolytes. But I just couldn’t bring myself to care enough about Harvard law school to write up the culture-wars attack I would once have.
And how is that to give up the fight? Continue your work, Rick, by all means. But would you feel we’ve betrayed the unborn if, before all that, we mentioned that hymns to God are sung in the trees and rivers? That the graves will give up their dead? That existence itself figures the Trinity, in how we live and move and have our being? That Christ was crucified and yet he rose again?
Murder is an old, old story, our friend Leon Kass once remarked. His point was that we must resist acts that redefine the human process (designing our descendents by cloning embryos for implantation and eventual birth, for example) even more than we resist acts that simply kill (cloning embryos for destructive medical research), however vile they may be.
I think I know what Kass meant and even why he said it. But it’s just a little too cold-blooded for me. Hyper-rationalism is not our friend here, and neither is “the myopia of a certain rationalism” that Pope Francis just noted. As we fight over process, we can begin to think process is the point—when saving babies is the point of the pro-life fight, thereby participating in part of God’s plan to save our souls.
Forgive me then, Rick, if I continue to propose that ordinary prayer and everyday awareness of the reality of God are more likely to find willing ears—if I preach the metaphysics of Christianity rather than the law-and-policy-betrayed social ethics of tattered old Christendom. In fact, you’ve joined me on this side of things before. Why not again?
Thoughts welcome, from readers and other MOJ-ers.


Garnett, Rick | Permalink