Tuesday, December 13, 2016
Prof. Charles Camosy (Fordham) has a piece in the Washington Post called "Millions of Lives Are in Paul Ryan's Hands. His Catholicism Is Our Only Hope." He writes, among other things, that "Ryan’s proposal is deeply problematic — especially for the most vulnerable. And for Catholics, that’s a serious problem. Although Catholics had plenty of reasons to critique the ACA, including understandable concerns about the Obama administration’s health policy steamrolling individuals and communities who cannot in good conscience participate in abortion, the overall effort to make health care as accessible as possible is, by Catholic standards, a worthy goal." And, he concludes with this:
Ryan’s commitment to the Catholic Church means that he ought to rethink his health-care reform proposals and make sure that — instead of privileging the young, wealthy and healthy — they instead lift up the sick, poor and old. It is through these populations, after all, that Christ comes to us today. Indeed, Christians are told that it is how we treat them that will determine our ultimate fate after death.
We found trillions of dollars to fight unnecessary wars overseas. We are likely to find them for a huge, bipartisan infrastructure project. There is no excuse for not finding them to make sure that the least among us have the health care they are owed. To do any less means abandoning people bearing the face of Christ Himself.
Prompted by Charlie's piece, I want to put aside some questions I have about whether "owed" is the best word to use here and instead to ask . . . how should someone who aspires to do the Right Thing with respect to health-care policy (which is, in my view, impossible to separate from other policy matters, including those relating taxation, nutrition, litigation, etc.) approach the matter? I admit . . . I genuinely don't know. The more "progressive" sections of my social-media feeds reflect a deep, almost religious (though often unexamined) conviction that the answer is easy: "A single-payer system in which 'market forces' don't determine the costs or availability of services." It seems clear to me, though, that it is not possible to eliminate (as opposed to regulate) 'market forces' entirely from this (or almost any other) domain because people -- being people -- respond to incentives. In the more "conservative" sections, I sometimes sense a failure to appreciate the fact that it is in all of our interests, for many reasons, that the public authority attend to citizens' health and well-being. So again: What should we do? How do we move -- in an effective and, yes, reasonably efficient way -- all of the relevant variables in the right directions?
A few things, that seem relevant to this discussion, seem to me to be the case (I'd like to hear from others whether and in what ways they disagree). In no particular order (and putting aside my view that some things which are treated in contemporary debates as "health care", e.g., euthanasia and elective abortions, are not):
- The public money that is available for health-care-related programs is non-infinite (even if one thinks there is more to be had through increased taxation), and so spending on such programs involves, at least to some extent, trade-offs.
- We should not tax-and-spend (on anything, including health-care programs) at levels that endanger national security, or that cause excessive harm to the economy-in-general, or that impose unfair burdens on the next generation(s).
- We should be clear-eyed and candid -- and also always non-negotiably committed to the equal dignity of every human person, regardless of age, disability, etc. -- when deciding how to allocate health-care-related funds as between, say, pre-natal, early-childhood care, and preventive care, on the one hand, and experimental, aggressive, and "futile" care, on the other. (More bluntly - any conversation about single-payer systems has to include conversations about, e.g., morally defensible triage, rationing, and tort/malpractice reform.)
- It is not always unfair or otherwise wrong to, when designing a health-care-provision regime, require people to bear the risks of freely chosen unhealthy or dangerous behaviors.
I could probably think of more, but this is enough for now, maybe. Like I said, I'd welcome other bloggers' "takes" on this. This isn't a "politics" or a "policy" blog, I realize, and I mean to be inviting a conversation about what the Church's social teachings tell us about the ends, the limits, and the design of legal regimes, in a particular area.
(And yes, I admit: I'm avoiding grading.)
Here's a fun article on J.S. Bach's magnificent Mass in B minor, one of the magisterial and final pinnacles of his oeuvre, and yet in some ways puzzling. What, after all, was a faithful Lutheran doing setting an entire Roman Catholic Mass--a Missa Tota?
And for performances, stay away from the trendy and the faux HIP (Historically Informed Performances). Someday I will write a rancorous essay entitled, "Historically Informed Performances: The Living (and oh so HIP) Originalism of Classical Music."
Instead savor the magnificently moody and measured performances of Furtwängler and Scherchen. Or, if you can't get ahold of those, this version conducted by Herbert von Karajan will do.
Here is an enjoyable exchange of comments over at our Center site on this post that I wanted to share with readers here, reflecting a range of jurisprudential and musicological views--the excellent Frank Cranmer of Law and Religion UK, my colleague Mark Movsesian, and then a response from me.
On historically-informed performance, I’m afraid we must disagree.
All those incredibly s-l-o-w, turgid performances of Handel and Bach, muddy, Romantic English organs (maybe they built better ones in the States), oversized symphony orchestras producing completely the wrong balance – we’ve been there and I, for one, don’t want to go back.
Originalism makes less sense in music than in law, I’d agree, because law involves power. And sometimes a contemporary take on early music works, like Respighi’s Birds and Ancient Airs and Dances. But as a presumption, I’d go with the clarity of Originalism in music on aesthetic grounds, over gushy late-Romantic reinterpretations. Where’s your sense of tradition?
Frank, a pleasure to see you here. It seems that both you and my comrade in arms are as one on this matter. But he has a very Puritanical streak in matters of art (and food, I should add) that runs deeply against my grain. And I cannot agree that the ascetic and rather precious technicality of HIP performances is really at all close to what Bach intended. So I suppose I regard myself as the true traditionalist. It’s like the difference between originalist theory today and the actual jurisprudence of Joseph Story or John Marshall. Very few real similarities.
Oh well. De gustibus non est disputandum–in law and in art.
Monday, December 12, 2016
Two very different people on my mind when thinking about this passage from Legutko's The Demon in Democracy this morning were Rod Dreher (whose online endorsements led me to read the book) and Ted Olson (whose comfort with judicialized social restructuring in the name of constitutional liberty is characteristic of one prominent strain in today's ruling class):
Today's mainstream, like the erstwhile communist ruling class, takes over the mechanisms for creating laws and regards it as its exclusive property to be used for its own goals. The modern state openly, even proudly carries out the policy of social engineering, intervening deeply in the lives of communities while enjoying total impunity, which is guaranteed by its control of lawmaking and law enforcement procedures. A markedly important function of the law, to act as a barrier to political hubris, was lost or significantly weakened. Instead, the law has become a sword against the unresponsiveness and sometimes resistance of society to the policy of aggressive social restructuring that is euphemistically called modernization. The law in liberal democracy--as under communism--is no longer blind. No longer can one envision it as a blindfolded goddess holding the scales to determine guilt and punishment. It is now, as it was under communism, one of the engines that transforms the present into the future and the backward into the progressive. The law is expected to be endowed with an accurate picture of what is going to happen in the future so that it can adjudicate today what will certainly happen tomorrow.
Source: Rysszard Legutko, The Demon in Democracy: Totalitarian Temptations in Free Societies 96-97 (Encounter Books 2016, translated by Teresa Adelson) (emphases added).
Sunday, December 11, 2016
Bruce Ledewitz on "The Role of Religiously Affiliated Law Schools in the Renewal of American Democracy"
This new paper by Prof. Ledewitz might be of interest to MOJ-ers:
American Democracy has broken down. This crisis was on dramatic display in the 2016 Presidential Campaign. Americans are resentful, distrustful and pessimistic. We find it easy to blame “the other side” for the deadlock, mendacity and irresponsibility in American public life. By virtue of their public role, American law schools have an obligation to address the breakdown in order to understand and try to ameliorate it. That task is currently unfulfilled by law schools individually and collectively, which are distracted by marketing and pedagogy. Religious law schools, which retain the traits of normative discourse, mission, Truth and tragic limit to a greater extent than do secular schools, could assume responsibility for the health of American democracy. These schools could begin consideration of the spiritual sources of the nihilism in this culture. There are legitimate theological objections to playing this public role in a rapidly secularizing society. But if these objections are overcome, not only might American Democracy be renewed, so might religion itself.
Friday, December 9, 2016
The Supreme Court of Arkansas announced yesterday that the state has a vested interest in continuing to list a child's biological parents on his or her birth certificate. Last year, the county circuit court had allowed three same-sex couples to amend the birth certificates to include both spouses' names without a court order (as required in adoption cases). That decision was overruled.
Writing the AR Supreme Court's opinion, Justice Josephine Linker Hart explained: "In the situation involving the female spouse of a biological mother, the female spouse does not have the same biological nexus to the child that the biological mother or the biological father has. It does not violate equal protection to acknowledge basic biological truths." The dissent argued that the inclusion of the parent's name on the birth certificate ought to flow from marriage--not biology. Find the state court's opinion here.
Like the legal fiction created by the abortion cases in the use of the term "potential life" to describe the very actual, albeit nascent, vulnerable, and dependent human being whose life is snuffed out by the procedure, Obergefell v. Hodges created another such fiction regarding basic biology. From the Obergefell Court's opinion: "A third basis of protecting the right to marry...draws meaning from related rights of childrearing, procreation, and education..." And then, "All parties agree, many couples provide loving and nurturing homes to their children, whether biological or adopted." I do not quote these here to dispute the substantive point of the parties' agreement; rather, I seek to emphasize Kennedy's use of the terms procreation and biological children in the context of same-sex relationships. The use of these terms by the highest court in the land--like "potential life" in decades past--is pure legal fiction. To repeat the good Arkansas judge, who is simply upholding a well-grounded tenet of equal protection jurisprudence: "It does not violate equal protection to acknowledge basic biological truths."
Correction: The original version of this post incorrectly used the postal abbreviation for Alaska.
The Importance of Constitutional Norms, or “Why the Vice President’s Party Can’t Do Whatever It Wants in the Senate”
David Waldman at Daily Kos has advanced a proposal getting a good deal of attention on social media to have the Senate confirm Judge Merrick Garland to the Supreme Court on January 3rd at noon. The basic idea is to have Vice President Biden use his authority as presiding officer to recognize the Democratic leader (Senator Durbin, as Senator Reid’s and Senator Schumer’s terms will have expired) while there are only 66 senators (32 Democrats, 2 Democratic-caucusing independents, and 32 Republicans) and jam through Judge Garland’s confirmation (his having been renominated by President Obama that very moment) before the newly elected 34 senators have been sworn in (and bring with them a 52-48 Republican majority, assuming Republican John Kennedy wins the runoff in Louisiana).
Sean Davis argues in devastating detail why this would, among other things, flaunt the 20th Amendment (providing that Senate terms end and begin at noon on January 3rd) and a host of Senate Rules and practices, including Rule II.1 (providing that “the presentation of the credentials of Senators elect…shall always be in order” and take precedence over a motion to confirm a nomination) and Rule XXXI (providing that a nomination may not be acted upon the same day it is received). Waldman’s argument appears to rely on the view that the Senate is not a continuing body and that a majority (for a few minutes after noon on January 3rd anyway) can ignore or amend the Standing Rules of the Senate at will.
To Davis’s arguments and as a devotee of congressional procedure (everyone needs a hobby), I would add another based on a reductio. The Vice President is constitutionally the President of the Senate, and the presiding officer has the power of recognizing senators. But Rule XIX on recognition of senators by the presiding officer is just another rule. As long as Senate rules are amendable and disregardable from the chair, why couldn’t Waldman’s scheme be executed simply by having the Vice President recognize a Democratic senator (anytime, not just on January 3rd) for a unanimous consent request to confirm Judge Garland and ignore objections from Republicans? Or bring up the motion to confirm Judge Garland on a voice vote, assert that the ayes have it, ignore the request for a roll call vote, and table the motion to reconsider?
And then there are other problems, to put it mildly. For example, the President signs a commission for a judge upon notification from the Secretary of the Senate that the Senate has consented to a nomination. The Secretary of the Senate is a continuing office, presently held by a Republican appointee. If after all of this manipulation of the rules the Secretary objects and refuses (quite reasonably) to carry out the ministerial duty of transmitting to the President notification that the nomination has been confirmed, then what? Can the President sign a commission without notification from the Secretary that the Senate has consented to the nomination? (As an aside, there are also significant problems with a recess appointment to the Supreme Court in January, for the reasons spelled out in NLRB v. Noel Canning (2014) and because after January 20th Congress could enact a joint resolution ending its session, adjourn sine die, and reconvene for a new session, thereby causing the recess appointment to expire.)
This is all absurd, of course. But the larger point to make here is that the norms governing our institutions are partly a product of mores and practices (such as respect for established parliamentary procedure) reflecting underlying judgments about political and legal authority. I’m inclined to think these constitutional norms are still legal norms for reasons Jeremy Waldron has argued (Are Constitutional Norms Legal Norms?, 75 Fordham L. Rev. 1697 (2006)). We might all wish that those mores and practices--including the Senate’s consideration and confirmation of federal judges--were in better repair. But we would do well, I suggest, as lawyers and law professors amid these divisive times to foster the constitutional norms that have served us well, however imperfectly and however much we want "our" side to win. "And when the last law was down, and the Devil turned round on you — where would you hide, Roper, the laws all being flat?"
Thursday, December 8, 2016
Noting how evangelical Christians and orthodox Catholics voted overwhelmingly for Donald Trump because they believed religious liberty was under attack by the left, David Bernstein joins other observers who have catalogued the many ways in which the secular liberal victors in the so-called culture wars were piling-on against conservative Christians and how such episodes played a major role in the surprising victory of Trump in the presidential election.
In a post on the Volokh Conspiracy, David Bernstein notes a point made by President Obama's Solicitor General in a Supreme Court argument, a point that got only passing attention in the mainstream media but was highlighted as deeply concerning in media directed to conservatives and religious audiences: "the time the solicitor general of the United States acknowledged that religious institutions that oppose as a matter of internal policy same-sex marriage may lose their tax exemptions."
The rest of the post made be found here.
As the left is now learning and the right should be reminded as it comes to power, scorched earth politics has consequences. The side that overreaches when it gets political power and goes beyond implementing its policy agenda to attempt to destroy opponents politically and culturally frequently finds itself being removed from that political power.
December 8, 2016 | Permalink
In conjunction with my formal installation as President, St. Gregory's University will host a conference titled Leisure and Labor: The Liberal Arts and the Professions, March 21-22, 2017. We invite scholars, professionals, administrators, lay leaders, and religious to reflect upon the fundamental relationship between the liberal arts and job preparedness. Because I am just now putting this on MOJ, we will extend the time for submitting abstracts until January 8, 2017.
Wednesday, December 7, 2016
I reached the following "editor's footnote" in my re-reading this afternoon of J. Leon Hooper (ed.), Religious Liberty: Catholic Struggles with Pluralism (1993) (p. 226 n. 11); in the footnote, Hooper is describing, analyzing, and judging Murray's "The Issue of Church and State":
Murray's manner of restricting the socially significant meaning of religious freedom to an immunity right works well, if one considers the interaction of the church hierarchy and the executive branch of government. Problems arise even within his own thought, however, when one considers the role of the laity in shaping governmental legislation. For his argument to still apply, one would have to presume that the laity could bring no substantive content from their faith commitments to the laws that they shape -- that their faith remains simply motivational. As discussed in the general introduction to this collection, some question whether Murray has adequately dealt with the laity's attempts to bring gospel values to the juridical structures of the state, much less to what is called the world.
John Rawls's imposition of "the proviso" was published in the very same year as Hooper's footnote was published.