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, July 27, 2015

As the Church Discovered the Virtues of Religious Liberty, Eventually the Church will Appreciate the Charisma of Democratic Capitalism

It took long centuries for the Catholic Church, which frequently had aligned itself with State power, to come to a better understanding of the moral and prudential virtues of religious liberty. Developing as an institution during a time of authoritarian and rather primitive societies, the Church understandably accommodated to traditions by which the instruments of the State were used by those in power both to govern and to inculcate the vision of the elites.

In his famous book, We Hold These Truths: Catholic Reflections on the American Proposition, published in 1960 on the eve of the Second Vatican Council, American Jesuit John Courtney Murray offered the success of the unique American experiment in religious liberty as evidence of a new moral truth consistent with the natural law tradition of the Catholic Church.

The Second Vatican Council was greatly influenced by Murray and his observations about religious liberty in the American context. At the close of the Council in 1965, Pope Paul VI promulgated Dignitatis Humanae (The Declaration on Religious Freedom) formally declaring as Catholic teaching that “the right to religious freedom has its foundation in the very dignity of the human person.”

Writing about Murray and the Second Vatican Council, Judge John Noonan observed that “the Declaration on Religious Freedom would not have come into existence without the American contribution and the experiment that began with Madison.” John T. Noonan, Jr., The Lustre of Our Country: The American Experience of Religious Freedom 353 (1998).

The Catholic Church eventually came to appreciate that authoritarian government, especially as to religious freedom rights, created the environment for abuses and ultimately weakened faithfulness.

Likewise, the Church eventually will come to understand that authoritarian government approaches to economics also are rife with opportunities for abuse (crony capitalism, structuring the system to benefit political and economic oligarchies, rent-seeking by favored economic and political actors, etc.) and ultimately undermine prosperity.

But, just as was true with the slow evolution of the Church’s views on religious liberty, the Church will take some time to appreciate in its teaching that democratic capitalism has been the greatest engine for prosperity in the history of the world and creates the free space for moral structures and intermediary institutions, such as the Church.

As Catholic philosopher Michael Novak observed some 35 years ago in his classic work Toward a Theology of the Corporation at 1 (AEI 1981), “[m]ost theologians of the last two hundred years have approached democratic capitalism in a premodern, precapitalist, predemocratic way; or else they have been socialists, usually romantic and utopian rather than empirical.”  Novak was one of the first to deprecate “the anticapitalist bias of the Roman Catholic Church," which has been plagued with “systemic misperceptions about the nature of democratic capitalism.”  Id. at 9-10.

A Church that is rightly and genuinely concerned with the plight of the poor cannot afford to ignore the realities of economics.  In contrast with the static societies of the Middle Ages, during which the Church began to consider the economic moral order, the modern world has seen hundreds of millions lifted out of poverty by the innovation of free market economies during the past century and more.  We would do well to remember the harsh realities of human existence in the precapitalist period, as Novak explains:

Until the rise of democratic capitalism a permanent condition of poverty was seen as a given.  Indeed, in the 1780s four-fifths of all French families spent 90 percent of their income simply buying bread — only bread — to stay alive.  In 1800 fewer than 1,000 people in the whole of Germany had incomes as high as $1,000.  Yet in Great Britain from 1800 to 18509, after the sudden capitalist take-off that had begun in 1780, real wages quadrupled, then quadrupled again between 1850 and 1900.  The world had never seen anything like it.  After World War II dozens of other nations — but not all nations — used the ideas of democratic capitalism to experience even more rapid growth.  (Id. at 23-24.)

By contrast, nations with excessive government intervention into markets during that same post-World War II period discouraged innovation, investment, and growth, leading to economic stagnation. Point to a nation with a history of heavy-handed government interventions into markets, and you will be pointing to a nation that has suffered a (comparative) decline in economic growth.  A prosperous nation can afford to consider how best to allocate wealth, while a poor nation needs to focus on economic growth, which in turn demands relatively free markets.

Consider two contrasting examples:  South Korea as representative of the “economic miracle" in much of Asia.  And Argentina as illustrative of the cronyist interventionst approach by governments in much of Latin America.

South_Korea_on_the_globe_(Japan_centered).svgA half-century ago, South Korea experienced a level of poverty like that in the poorest nations of Asia and Africa.

A century ago, Argentina was “one of the world’s wealthiest countries, with a standard of living on part with that of the US.”  Michael Boskin, Why does Chile prosper while neighbouring Agentina flounders?, The Guardian, Nov. 22, 2013.  

Let’s compare the trajectories of these countries, with different economic policies.  In 1950, Argentina was a wealthy country, with per capita GDP of $6164 — far above South Korea’s of only $1185.  By 2010, Argentina had grown only to $13,468, while South Korea’s had jumped to $30,079.  The annual growth rate in Argentina over those 60 years barely broke 1 percent, while South Korea enjoyed a growth rate above 5.5 percent.  Christopher D. Piros & Jerald E. Pinto, Economics for Investment Decision Makers 629 (Wiley 2013).

Despite beginning this period as a poor and war-torn nation, South Korea by adopting largely (but not completely unregulated) free markets has become an advanced society with a leading economy. Argentina_on_the_globe_(all_claims_hatched)_(Chile_centered).svg

Despite beginning the period as a wealthy country, Argentina through political instability, excessive spending and debt, and repeated government intervention in markets has fallen steadily downward.  At its worst point a little more than a decade ago, 60 percent of the population of Argentina was below the poverty line.  On the Heritage Foundation “Economic Freedom Index,” Argentina ranks 169 out of 178 nations. 

Many factors — culture, political arrangements, monetary policy, natural resources, educational investment — play a role in a nation’s economic progress (or lack thereof).  But economic freedom remains indispenable.  Of course, no nation permits entirely free markets.  A stable legal system governed by the rule of law which holds people to account for agreements and punishes abuse is also essential.  Antitrust laws to prevent monopolies are standard.  Labor rights should be added to the mix.  And reasonable rate of taxation is necessary to build infrastructure and ensure educational opportunity.  In fact, contrary to the conventional wisdom in many Church circles, the number, extent, comprehensiveness, and intrusiveness of current governmental regulations and market controls imposed on economic entities in the developed world, national and international, is striking.  In sum, a thoroughly free market does not exist in this country.

The question is the right balance between free markets to allow creativity, innovation, and growth, and legal security to keep order in markets and prevent abuses.  The same is true in balancing the virtue of religious liberty against the imperative needs of a society.  And we cannot begin to find that balance without first appreciating the charisma of democratic capitalism.

Fortunately, Saint John Paul II already has jump-started the movement of Church moral teaching on economics beyond pre-modern assumptions:

If by “capitalism” is meant an economic system which recognizes the fundamental and positive role of business, the market, private property and the resulting responsibility for the means of production, as well as free human creativity in the economic sector, then the answer is certainly in the affirmative, even though it would perhaps be more appropriate to speak of a “business economy,” “market economy” or simply “free economy.” But if by “capitalism” is meant a system in which freedom in the economic sector is not circumscribed within a strong juridical framework which places it at the service of human freedom in its totality, and which sees it as a particular aspect of that freedom, the core of which is ethical and religious, then the reply is certainly negative. (Centesimus Annus, para. 42.)

Progress seldom proceeds in a straight-line.  As that progress moves haltingly forward in the future, Saint John Paul II’s vision will ascend again.

July 27, 2015 in Sisk, Greg | Permalink

"De Descriptione Temporum"

As I think I've mentioned before here at MOJ, I loved and was really shaped in my thinking by C.S. Lewis's The Discarded Image.   And, some of my favorite parts of the new (excellent) biography of "The Inklings" -- The Fellowshipby Philip and Carol Zaleski -- were about that book's theses.  Along the way, I encountered for the first time the inaugural lecture that Lewis gave when he was appointed to his chair at Cambridge University.  It's called "De Descriptione Temporum" (sometimes also called "The Great Divide"), and it's well worth a read.  Among other things, Lewis takes on the labels we use, and the premises those labels reflect, for describing historical periods, ages, and epochs ("The Dark Ages," for example).  And, he suggests provocatively that there has been a modern "un-Christianing" that has separated us, sharply, from the literary and other traditions of "the west."  Here's the conclusion:

And now for the claim: which sounds arrogant but, I hope, is not really so. I have said that the vast 
change which separates you from Old Western has been gradual and is not even now complete. Wide 
as the chasm is, those who are native to different sides of it can still meet; are meeting in this room. 
This is quite normal at times of great change. The correspondence of Henry More 13 and Descartes is 
an amusing example; one would think the two men were writing in different centuries. And here 
comes the rub. I myself belong far more to that Old Western order than to yours. I am going to claim 
that this, which in one way is a disqualification for my task, is yet in another a qualification. The 
disqualification is obvious. You don't want to be lectured on Neanderthal Man by a Neanderthaler, still 
less on dinosaurs by a dinosaur. And yet, is that the whole story? If a live dinosaur dragged its slow 
length into the laboratory, would we not all look back as we fled? What a chance to know at last how 
it really moved and looked and smelled and what noises it made! And if the Neanderthaler could talk, 
then, though his lecturing technique might leave much to be desired, should we not almost certainly 
learn from him some things about him which the best modem anthropologist could never have told us? 
He would tell us without knowing he was telling. One thing I know: I would give a great deal to hear 
any ancient Athenian, even a stupid one, talking about Greek tragedy. He would know in his bones so 
much that we seek in vain. At any moment some chance phrase might, unknown to him, show us 
where modem scholarship had been on the wrong track for years. Ladies and gentlemen, I stand 
before you somewhat as that Athenian might stand. I read as a native texts that you must read as 
foreigners. You see why I said that the claim was not really arrogant; who can be proud of speaking 
fluently his mother tongue or knowing his way about his father's house? It is my settled conviction 
that in order to read Old Western literature aright you must suspend most of the responses and unlearn 
most of the habits you have acquired in reading modem literature. And because this is the judgement 
of a native, I claim that, even if the defence of my conviction is weak, the fact of my conviction is a 
historical datum to which you should give full weight. That way, where I fail as a critic, I may yet be 
useful as a specimen. I would even dare to go further. Speaking not only for myself but for all other 
Old Western men whom you may meet, I would say, use your specimens while you can. There are not 
going to be many more dinosaurs.

July 27, 2015 in Garnett, Rick | Permalink

Great news from North Carolina

The state's Supreme Court has upheld North Carolina's school-choice program.  It is just too bad that the Court split on party lines, 4-3, and that the 3 dissenting justices embraced (as a matter of state constitutional law) the unsound no-aid separationism that so distorted Establishment Clause caselaw between Everson and Mueller / Witters / Zobrest / Agostini / Zelman.   

July 27, 2015 in Garnett, Rick | Permalink

"Is Ecology Haunted"?

This reflection, by Doug Sikkema, on the new encyclical was, for me, helpful and illuminating.   It draws on C.S. Lewis, Dante, Charles Taylor, Wendell Berry . . .  .  Check it out.  A bit:

So today we live within what Taylor calls the “immanent frame,” a world reduced to naturalist explanations, increasingly closed off to the transcendent. And whether we're aware of it or not (and whether we're religious or not), this frame has shaped much ecological thought in our secular age. This means environmentalists,especially Christian environmentalists, don't get to hop on to the subtraction-narrative bandwagon, lamenting everything we've lost since the fifteenth century—as if dysentery were something to get nostalgic over. We have to admit that disenchanting the world allowed for the possibility of major breakthroughs in applied science (particularly modern medicine) that have improved life. We also have to recognize that the flattening of the world allowed for a really robust look at life on the x-axis.

Yet while we might be grateful for the growing body of scientific knowledge accumulated within the scope of the immanent frame, there are still troubling consequences when we lose sight of the y-axis. As we become increasingly buffered from even the possibility that “something” might transcend our sensible world, we have a much more difficult time really believing that humans are not justanother type of animal and the world is not just a place of inert, material resources for us to use up in any way we can.

Laudato Si': Recovering Ecology's Y-Axis

In Laudato Si', Pope Francis attempts something Wendell Berry in his fiction, Annie Dillard in her essays, and even Christian Wiman in his poetry have all attempted in the past decades: to recover the y-axis within ecological thought.

July 27, 2015 in Garnett, Rick | Permalink

The NYT on the current abortion controversy

This piece might be as close at the NYT can come to covering an abortion-related controversy in a way that does not merely repeat the talking points and agenda items of the abortion-rights lobby.  A bit:

But anti-abortion activists say their new efforts are forcing their opponents to defend their own words and beliefs on the issue in a way they had not had to before.

“It’s very difficult to deliver a message that people don’t basically believe,” said Marjorie Dannenfelser, the president of the Susan B. Anthony List, a group that funds anti-abortion candidates. “We’re the source of the information, so they think we’re biased.” But in this case, she added, “it’s coming from them, not us.”

Abortion opponents hope the videos will provoke people to consider the humanity of the unborn, much like discussing ultrasounds can — albeit in a much more jarring and graphic way. Ms. Conway, the Republican pollster, calls this a “shock the conscience, warm the heart” approach.

On the other hand, the piece also employs, chillingly, an abortion-related euphemism that was new, even to me:  "The group also says it knows that Mr. Daleiden or his colleagues were admitted into a clinic area that processes tissue after abortions, and it believes they may have obtained footage of that as well."  "[A] clinic area that processes tissue . . . ".  God help us.

July 27, 2015 in Garnett, Rick | Permalink

On "Sectarian Schools" Clauses and Religious Neutrality

Congratulations to Tom and St. Thomas's religious liberty clinic on the decision from North Carolina. Tom writes below that "the plaintiffs' problem on the religion question was that there was no North Carolina anti-establishment provision restricting government support of religious schools ("sectarian schools," as other states call them)."

I have a short essay discussing, in part, a recent case from a state with just such a clause--Colorado--whose supreme court rejected a voucher program on the ground that any aid--direct or indirect--would violate the clause. Just a small quibble: I do not think that such clauses are rightly characterized as "anti-establishment provisions." They are something quite different. I use the essay to reflect more broadly about what they are, what purpose they serve and were intended to serve historically, and broader questions that they raise about claims of "religious neutrality" by the state toward matters educational--public or private. 

July 27, 2015 in DeGirolami, Marc | Permalink

NC's School Choice Program Upheld

I'm happy to report that the North Carolina Supreme Court has upheld the state's school choice program against state constitutional challenges. (The main case is Hart v. State; a second ruling, Richardson v. State, relies on Hart.) The program provides scholarships to low-income students to use at the private school of their choice, religious or secular. The plaintiffs brought a variety of challenges, which boiled down to three arguments:

(1) The state cannot fund private schools at all. (E.g., the plaintiffs said, the clause requiring the state to maintain a "uniform system of schools" means that funded schools must be uniformly public.) The court answered that the uniformity clause only applies to policies within the public school system and does not prohibit the state from funding other educational opportunities. This is the opposite result from the one the Florida Supreme Court reached in 2006 in striking down that state's program under a similar "uniform education" provision (Bush v. Holmes).

(2) The state failed to include sufficient safeguards for the educational quality of schools participating in the program. This allegedly violates, e.g., the requirements that legislation serve a public purpose, and as well as the state's duty to "maintain the right of the people to the privilege of education"). The court responded that since some (most?) private schools were educationally adequate, claims of inadequacy were not the basis for a facial challenge to the program. (This reasoning might suggest there could be an as-applied challenge to a particular school's inadequacy, although the court isn't entirely clear on that.)

(3) Finally, the plaintiffs said, the program authorized the participation of schools that discriminate on the basis of religion, in violation of the provision that no person shall "be subjected to discrimination by the State because of race, color, religion, or national origin." The court held that the plaintiffs--state taxpayers--lacked standing to bring this claim because they did not claim they had been personally subjected to discrimination (e.g. denied employment or admission by a school on grounds of religion).

     Basically, the  plaintiffs' problem on the religion question was that there was no North Carolina  anti-establishment provision restricting government support of religious schools ("sectarian schools," as other states call them). So the plaintiffs tried to shoehorn their objection to religious schools into the provision prohibiting state discrimination based on religion. But the round peg didn't fit the square hole: they hadn't been discriminated against just because they were taxpayers, and moreover their equation of discrimination by the school with discrimination by the state misstates Con Law 101 principles about state action.  [UPDATE: I struck out "anti-establishment" above because, as Marc points out, the 19th-century Blaine-type restrictions on aid to "sectarian" schools can certainly be seen as doing something quite different from promoting pluralism as anti-establishment provisions do. I didn't mean to weigh in here on that issue--although I basically agree with Marc on it.] 

     The religious liberty clinic I supervise at St. Thomas, together with the Christian Legal Society,  filed a brief for several amici on the merits of the religious-discrimination claim. We emphasized that a religious school's employment and admissions decisions on ground of religion involve a constitutionally protected right to form a community based on religious ideals, and that the state could legitimately preserve that while also supporting the education those schools provide. (We also pointed out the basic state-action error.) The court didn't reach these arguments.

A passage in the court's discussion of the "public purpose" doctrine sums up the basic message of this decision:

Although the scholarships at issue here are available only to families of modest means, and therefore inure to the benefit of the eligible students in the first instance, and to the designated nonpublic schools in the second, the ultimate beneficiary of providing these children additional educational opportunities is our collective citizenry.

July 27, 2015 in Berg, Thomas | Permalink

Friday, July 24, 2015

Before entering the public square, prepare yourself for spiritual combat

Former Oklahoma State Representative, Rebecca Hamilton (a pro-life Democrat), hits it out of the ballpark in giving advice to anyone wishing to engage in pro-life work. It really applies to anyone desiring to make a difference in the public square.

The beginning of indifference to the wiles of greed, power, sex, flattery, lies and manipulation that you will find in the political arena is humility, and the beginning of true humility is understanding that you are saved by grace and that is none of yourself. It is all from Him. 

If you are an instrument — if you are His instrument — He will use you to save lives. You will do good. But if you cling to your own understanding and try to serve the dual masters of your own desires and His will, you will do well, and that only for yourself. 

 Once you have let God put you through the spiritual boot camp of facing your sins, you will be ready for maintenance. My own recipe when I was in office was to pray the Rosary every day, go to Mass as often as I could, go to confession every week — although this can be problematic with some priests, so you may have to go monthly if your pastor gets upset by weekly confessions — and read the Bible every day. I usually read the Bible through in a year and a half. 

There are other ways to keep yourself in spiritual shape. I have since found that just sitting with Jesus in the Eucharist is a wonderfully healing experience." 

Read more: http://www.ncregister.com/blog/rhamilton/ask-the-holy-spirit-to-put-your-through-spiritual-bootcamp/#ixzz3gqjNU6eb

July 24, 2015 in Scaperlanda, Mike | Permalink

Thursday, July 23, 2015

The Holy See on "the aging century"

I suspect that many of us are personally confronting the challenges of caring for aging parents.  A recent intervention by the Permanent Observer Mission of the Holy See to the UN's working group on aging cited Pope Francis' recent poignant comment on this topic:  "“it’s brutal to see how the elderly are thrown away… No one dares to say it openly, but it’s done!”  It's scary to see one's own personal situation as part of a worldwide trend -- rather like recognizing your own contributions to the global environmental situation described in Laudato si. 

The description of the problem in the Holy See's intervention describes an impending global crisis as significant as the environmental one, one that ought to be getting more attention that it typically does:

In the West, data tell us that the current century is the aging century: children are diminishing, the elderly are increasing. Currently 700 million people, or 10 per cent of the world’s population, are above 60 years of age. By 2050, it is estimated that this number will double, reaching 20 per cent of the global population.(2)  This increasing imbalance is a great challenge for contemporary society. For example, this puts increased pressure on healthcare and social protection systems. Given these figures, my delegation would like to draw particular attention to the needs of elderly women who are often excluded or neglected.

Therefore, as the number of older people increases along with the rise in average life expectancy, it will become increasingly important to promote an attitude of acceptance and appreciation of the elderly and to integrate them better in society. My delegation would like to reiterate that the ideal is still for the elderly to remain within the family, with the guarantee of effective social assistance for the greater needs which age or illness entail.

July 23, 2015 in Schiltz, Elizabeth | Permalink

“As in the Camino, so in marriage, so in life.”

As we look for ways to strengthen marriage in the United States, my daughter, Michelle Scaperlanda McWay, has an excellent article in Verily, entitled "What I Learned About Marriage by Hiking the Camino with My Husband"

July 23, 2015 in Scaperlanda, Mike | Permalink