Wednesday, July 4, 2018
Like our law of slavery once was, abortion law in the United States today is a function of human positive law -- law that can be made and unmade by human will.
As a judicially constructed constraint on legislated protection of vulnerable human life, Roe v. Wade is particularly pernicious. With the upcoming change in the Supreme Court's composition, Roe probably will and definitely should be overruled even further than it already has been.
Recognition of this new likelihood is compatible with the observation that some of those trying to raise an alarm about "the reversal of Roe v. Wade" are engaged in disingenuous scaremongering. Abortion-friendly legal types have long known how election- and appointment-dependent their hold on abortion law has been, especially with respect to legal protections for life later in pregnancy. And that's where the upcoming judicial action will be.
* * *
Although many believe that our constitutional law of abortion is all about Roe v. Wade, they are wrong. Planned Parenthood v. Casey is much more important.
Casey is the 1992 decision in which a majority of the Supreme Court partially overruled Roe while a plurality purported to preserve its "central holding." To accomplish this feat, the plurality developed a new take on stare decisis that Justice Scalia accurately described in dissent as a "keep-what-you-want-and-throwaway-the-rest version."
The Casey plurality discarded Roe's trimester framework and acknowledged the permissibility of post-viability abortion prohibitions. In place of Roe, Justices O'Connor, Kennedy, and Souter substituted an "undue burden" standard of review for laws limiting pre-viability abortions.
The Justices have sparred over application of Casey's undue burden standard ever since. That is unsurprising given how unstable a legal standard "undue burden" is in the culturally and politically fraught context of abortion law.
The identity of the Justices applying it has been the single variable most predictive of the results this standard delivers. That is exactly why it's no good for the impartial administration of law and needs to go.
* * *
The most recent opinion for the Court in this area is Justice Breyer's in Whole Woman's Health v. Hellerstedt. By 5-3 vote (Garland's nomination was pending), the Court in Hellerstedt held unconstitutional some Texas health and safety regulations for abortion clinics. If Gorsuch had been on the Court together with any one of the potential nominees on President Trump's short list now, Whole Woman's Health would have come out the other way. The Supreme Court would have affirmed rather than reversed the decision under review. That decision would not have required overruling any more of Roe, just applying the undue burden standard from Casey more like the court of appeals did.
It is impossible to know what abortion-law case the Supreme Court will take up next. But it is reasonable to believe that the case's correct decision may require overruling Roe further than Casey did. If the Court decides to review the constitutionality of a state law prohibiting abortion after twenty weeks, for example, the Court should abandon the line that Casey drew at viability.
This shift would not be avulsive. An unborn baby at twenty weeks gestational age is obviously as much a human being worthy of positive-law protection as one at twenty-four weeks gestational age.
* * *
Abortion-friendly activists are understandably uneasy these days. But their real concern should not be Roe's further demise. They should worry, instead, that the pro-life movement will continue to win hearts and minds for the principle of human equality that justifies judicial abandonment of Casey's viability line. And they can now expect the Supreme Court's unjust abortion opinions to erode at the same pace.
Monday, April 23, 2018
Last week, Professor Stephen Bainbridge wrote a post reflecting on mortality and reconciliation, "Thoughts on the Passing of a Friend and Colleague." Do yourself a favor; read and reflect:
[A]s a Catholic, a passing is a wake up call. First, to honor and remember the friend by praying for the repose of their soul. Second, to evaluate my own inner spiritual life and then seek Reconciliation. Third, to commit some act of charity in remembrance of the friend. Fourth, to bear up the living in love and prayer. To reach out to those we have wronged or who have wronged us and be reconciled.
Wednesday, April 11, 2018
This Commonweal article about Augusto Del Noce is one of the most insightful I've read in a while. Tolle et lege! (HT: Richard Reinsch @Reinsch84). A snippet:
By insisting that the true fault line of contemporary history ran between those who affirmed man’s religious dimension and those who denied it, Del Noce offered an unusual perspective on Catholic participation in the public arena. He thought its focus should be neither on protecting the power of the institutional church, nor on some list of religiously neutral ethical concerns, but rather on a conception of human flourishing that reflects the religious dimension. This would include an idea of education that is not just utilitarian but respects the deeper human need for beauty and knowledge as ends in themselves; respect for work as an expression of the human desire to build and to serve, not just a tool at the service of profit and economic growth; love for what Simone Weil called “rootedness”—namely “the real, active, and natural participation in the life of the community which preserves in living shape certain particular treasures of the past and certain particular expectations for the future”; a passion for freedom, not as empty self-determination, but as protection of the most specifically human sphere, which is precisely the religious dimension, the search for meaning. A Catholic political orientation based on the awareness of the religious dimension would also allow—and indeed require—us to struggle for justice, but the justice we struggled for would not be our invention, much less a convenient fiction. It would be a moral reality that we recognize inside and outside of ourselves and to which we must ascend.
Saturday, March 31, 2018
There has been some talk recently about a papal interview with a journalist. One of my favorite such interviews has been organized in God and the World. It is a conversation between then-Cardinal Ratzinger, Pope Benedict XVI, and Peter Seewald.
Here are two questions and answers appropriate for our meditation this time in the liturgical year:
14. The Cross
We are used to thinking of suffering as something we try to avoid at all costs. And there is nothing that many societies get more angry about than the Christian idea that one should bear with pain, should endure suffering, should even sometimes give oneself up to it, in order thereby to overcome it. "Suffering," John Paul II believes, "is a part of the mystery of being human." Why is this?
Today what people have in view is eliminating suffering from the world. For the individual, that means avoiding pain and suffering in whatever way. Yet we must also see that it is in this very way the world becomes very hard and very cold. Pain is part of being human. Anyone who really wanted to get rid of suffering would have to get rid of love before everything else, because there can be no love without suffering, because it always demands an element of self-sacrifice, because, given temperamental differences and the drama of situations, it will always bring with it renunciation and pain.
When we know that the way of love---this exodus, this going out of oneself---is the true way by which man becomes human, then we also understand that suffering is the process through which we mature. Anyone who has inwardly accepted suffering becomes more mature and more understanding of others, becomes more human. Anyone who has consistently avoided suffering does not understand other people; he becomes hard and selfish.
Love itself is a passion, something we endure. In love I experience first a happiness, a general feeling of happiness. Yet, on the other hand, I am taken out of my comfortable tranquility and have to let myself be reshaped. If we say that suffering is the inner side of love, we then also understand why it is so important to learn how to suffer---and why, conversely, the avoidance of suffering renders someone unfit to cope with life. He would be left with an existential emptiness, which could then only be combined with bitterness, with rejection, and no longer with any acceptance or progress toward maturity.
What would actually have happened if Christ had not appeared and if he had not died on the tree of the Cross? Would the world long since have come to ruin without him?
That we cannot say. Yet we can say that man would have no access to God. He would then only be able to relate to God in occasional fragmentary attempts. And, in the end, he would not know who or what God actually is.
Something of the light of God shines through in the great religions of the world, of course, and yet they remain a matter of fragments and questions. But if the question about God finds no answer, if the road to him is blocked, if there is no forgiveness, which can only come with the authority of God himself, then human life is nothing but a meaningless experiment. Thus, God himself has parted the clouds at a certain point. He has turned on the light and has shown us the way that is the truth, that makes it possible for us to live, and that is life itself.
Monday, March 5, 2018
Senator Tammy Baldwin and her staff are attacking a district court nominee in Wisconsin based on critical comments he made about Justice Kennedy in a blog comment and a couple of radio interviews. The focal point of the attack on nominee Gordon Giampietro is criticism of the opinions in Obergefell v. Hodges and Lawrence v. Texas:
"Senator Baldwin believes serious questions remain about whether this nominee would be able to serve as a fair and impartial judge on a federal court," Baldwin spokesman John Kraus said.
Kraus focused on Giampietro's comments on the U.S. Supreme Court's decision on same-sex marriage. In 2015, Giampietro said of Justice Anthony Kennedy's ruling, "It's not really legal reasoning" and added that Kennedy "went off the rails years ago" in a decision striking down sodomy laws.
“This nominee for a lifetime appointment to the court attacked a majority decision from the Supreme Court, written by Justice (Anthony) Kennedy, and said it could be ignored," Kraus added. He said Giampietro should have made this information available to the nominating committee.
Really? C'mon. There's nothing disqualifying about attacking "a majority decision from the Supreme Court," especially one authored by Justice Kennedy. It's as American as America itself.
Conveniently, Mitch Berman and David Peters at Penn have just posted to SSRN a new paper about Justice Kennedy. They defend him as a principled jurist. But to set up their defense, they collect criticisms in Part I. Here are some evaluations of aspects of a range of AMK opinions for the Court:
- Parents Involved is "cryptic." (Jonathan Fischbach)
- LULAC is "bizarrely unclear." (Michael S. Kang)
- Boumediene is "Kafkaesque." (Robert J. Pushaw, Jr.)
- Casey is "unintelligible." (Michael Stokes Paulsen)
- Lawrence is "remarkably opaque" (Cass Sunstein) & "almost incomprehensible" (Steven Calabresi).
- Abbasi is "wholly unsubstantiated," "staggeringly wrongheaded" and, "for lack of a better word, nuts." (Stephen I. Vladeck)
- Alden is "not only intellectually insupportable ... but ... simply wrong" (Louise Weinberg); also, "nothing short of fanciful" (Daniel Meltzer).
- Citizens United is "simplistic" and "preposterous." (Ronald Dworkin)
- Gonzales v. Carhart "refuses to take Casey and Stenberg seriously.” (Ruth Bader Ginsburg)
Senator Baldwin and her staff might not recognize all the names here (I don't), but these critics plainly represent a wide range of views on other matters. Whatever one thinks of particular opinions, Justice Kennedy has at one time or another driven almost all of us to conclude he's "gone off the rails" in some respect or another. This doesn't disqualify. It just shows that we're paying attention.
Wednesday, February 14, 2018
We can't serve dishes made with quick-melting Ched-O-Bit any more, so I'll be running out later today to pick up some tomato soup instead. No need to wait, though to enjoy Amy Welborn's "Gallery of Regrettable Lenten Food."
A taste of the advertising copy: "Is Lent a Problem? 'No!' ... says Chef Ernest Cuony of New York's Fashionable Hotel Barclay. 'You've shown me, Mrs. America, that it's not necessary to sacrifice deliciousness and flavor in order to 'toe the mark' during Lent. As a matter of fact, your pure, wholesome, delicate-flavored WESSON OIL gives--how you say it?--'oomph' to even every-day dishes.'"
Friday, January 26, 2018
The Institute for Religious Liberty at Thomas More College hosted a three-speaker event earlier this week on the topic "Religious Liberty at a Crossroads: Legal Perspectives." The speakers were me, Fred Gedicks, and Ilya Shapiro.
Thomas More College is the liberal arts college of the Diocese of Covington (Kentucky). Prior to the evening talk, I had the opportunity to explore the campus. The architectural highlight is Mary, Seat of Wisdom Chapel, which occupies the geographical center of campus.
The opening claim in my talk was that it is important to keep legal perspectives on religious liberty in perspective. A legal perspective is neither the only nor the most important perspective for thinking about religious liberty. It is more important to think about what religious liberty is for, and to use our civic freedom to exercise our religion.
As for the legal perspective itself, my primary theme was: "If you're litigating, you're losing." This is true of normal people and institutions. You end up in court because something has broken down and you find yourself in court opposite somebody else. If you're in as a defendant, someone has brought legal action against you. And if you're in as a plaintiff, it's because you failed to get the protection you seek in some other way.
It's not great being in a lawsuit, even as a plaintiff. You have to deal with lawyers. And even if you win, you might still end up worse off than if you never had to file. That's a particular risk of religious liberty litigation because it is so easy to get framed by ideological adversaries as seeking special rules of "the normal law doesn't apply to us" sort. A better way to think about these cases is as the normal consequence of a general commitment to religious liberty as it interacts with other legal requirements. But the "special rules" framing has been more prevalent.
Another feature of recent religious liberty cases comes into view when thinking about the limits of "if you're litigating, you're losing." This is generally _not_ true of "movement litigation." In "movement litigation," you're litigating to move the law in a certain direction. If you win, you've moved the law. And if you lose, you haven't moved the law but hopefully the law is no worse than it was (though there is a risk of this happening).
Religious liberty can sometimes operate as movement litigation. But the contraceptives mandate cases were not of this sort. The cases were preservative rather than transformative.
Although some of the cases are still pending, the religious liberty claimants have largely prevailed. But while we've "won" for now, that doesn't mean we aren't losing more generally. The mandate was very aggressive, and the sources of that aggression remain.
Friday, December 22, 2017
In looking into the relationship between anti-immigrant sentiment and anti-Catholicism earlier today, I came across an interesting New York Times write-up of a panel on anti-Catholicism that took place in 2008. Unsurprisingly, Fr. Neuhaus's observations stood out. I've highlighted the most provocative and seemingly accurate Neuhaus-ism, which I've not previously seen.
The Rev. Richard John Neuhaus — a leading conservative intellectual, a former Lutheran pastor and the editor of the leading Catholic journal First Things — offered a surprising view on the question.
“To be a Catholic is not to be refused positions of influence in our society,” he said. “Indeed, one of the most acceptable things is to be a bad Catholic, and in the view of many people, the only good Catholic is a bad Catholic.”
Father Neuhaus dismissed the notion that anti-immigrant sentiment was related to anti-Catholicism, since many Latino immigrants to the United States are Catholic. (But he did note that the church, which has been strongly pro-immigrant, could be seen as having a vested interest in the immigration debate, since immigrants are a major source of members.)
Would that Fr. Neuhaus were wrong; but he was, and remains, right.
Tuesday, December 19, 2017
There are tens of millions of American citizens who are not natural born, or whose status as natural born is a matter of some dispute. A naturalized citizen like Jennifer Granholm or Arnold Schwarzenegger is plainly ineligible for the presidency, for example, while someone born abroad to an American parent, like Ted Cruz, may or may not be eligible depending on the legal meaning of "natural born." With so many people excluded or placed under a shadow by the "natural born" requirement, there is no particular partisan valence to an amendment that eliminates it. But that kind of valence is inescapable once a proposed amendment appears instrumental to a particular person's candidacy.
One reason to move quickly on eliminating the "natural born" presidential eligibility requirement is to get it done before the amendment can be tied to a particular potential candidate. Examples of how partisan politics can distort perceptions are easy to come by. While the "birther" controversy about Barack Obama was brewing, for example, some were suspicious of attempts to eliminate the "natural born" requirement. Similarly, controversies about Republicans like John McCain and Ted Cruz led to (sometimes justified) accusations of motivated reasoning in dismissing concerns about "natural born" status.
Another reason to move quickly is that the idea is an obvious political winner with virtually no political downside. Politicians whose stances on illegal immigration have led to charges of anti-immigrant bias should be tripping over themselves to get out in front in support of an amendment to remove the last vestige of citizenship inequality. For them, the problem with illegal immigration is that it is illegal. People who follow the rules to become naturalized citizens are in a totally different category from people who haven't followed the rules and have stayed in the shadows as a consequence. Throwing symbolic support behind those who follow the rules is a way of underscoring this aspect of their viewpoint. That the support is largely symbolic does not make it insignificant. Symbolism matters.
Timing also matters. If an amendment to eliminate the "natural born" requirement were to become associated with Democrats before Republicans, that would probably guarantee that it goes nowhere in the present political climate. For too many, it would be viewed as just another mushy Democrat play for the immigrant vote. Interestingly, though, the partisan taint would probably not run in the other direction. If Republicans were to be the first champions of eliminating the "natural born" requirement, it could be attacked as politically opportunistic, to be sure. But the move could also be viewed as clever and perhaps even refreshing among the cynically minded, rather than as soft or devious. The merits of eliminating the "natural born" requirement would be sufficiently attractive to Democrats precisely on the merits that Republican championship of the amendment would not prevent them from also supporting it.
To get the ball rolling, it will be necessary to find the right political champions. Fortunately, that should not be difficult. There have been so many past failures to amend the natural born citizen requirement that the ranks of past proponents provide a natural place to start. And studying the reasons for those failures (apart from the sheer difficulty of the amendment process) can supply some starting insights about what to do differently.
Thursday, December 14, 2017
Legal changes to legal instruments can take various forms. Parties who wish to eliminate a contract provision or legislators who want to eliminate a phrase in a statute, for example, can just strike out the language that needs to go. The flip side of this kind of change is one that interpolates new words into a contract or into a statute. Both kinds of change are common in a range of legal instruments.
When it has come to amending the Constitution of the United States, however, we have adopted a different form---supplemental add-on language tacked to the end. This kind of amendment resembles a codicil to a will. It modifies the legal effect of the original instrument by adding supplementary or replacement language without making any change to the wording of the original instrument itself.
This form is not what James Madison wanted. He acquiesced on form to save substance, as the supplemental form was important to a small group of congressmen whose votes he needed on the proposed amendments.
The First Congress's choice of this form for the first ten amendments was probably a bad decision. Putting the language that accomplishes the legal change together with what is being changed can provide more clarity than tacking it on to the end.
Consider, for example, the two amendments proposed by Madison that include protection for the "rights of conscience" against infringement by the federal government and the state governments. The protection against federal infringement would have been in Article I, § 9 (together with other limitations on the federal government), while the protection against state infringement would have been in Article I, § 10 (together with other limitations on state governments). The placement informs interpreters about the kind of protection given.
For an idea of just how much clearer our Constitution would read if Madison's proposed form for amendments had been, take a look at the superb article by Professor Edward Hartnett, A "Uniform and Entire" Constitution; Or, What if Madison Had Won?, 15 Constitutional Commentary 251 (1998). Among other insights, Hartnett explains how a combination of interpolations and strike-throughs would have more powerfully extirpated slavery from the Constitution than doing the deed with a stand-alone Thirteenth Amendment. To better understand his discussion of the Thirteenth Amendment, though, one must appreciate his earlier explanation of how most of the "Bill of Rights" provisions of the first ten amendments would have been interpolated in Article I, § 9, "immediately after the protection of the Great Writ of habeas corpus and immediately before the prohibition on bills of attainder and ex post facto laws." One "embarrassing drawback" of this location for a bill of rights, Hartnett notes, is that Article I, § 9 also includes the protection of the slave trade from being banned until 1808. And here now we can pick up with Hartnett's discussion of an interpolated/strike-through Thirteenth Amendment:
The Thirteenth Amendment abolished slavery. If it were integrated into the body of the Constitution, it would fit comfortably in the Madisonian bill of rights in Article I, section 9. Indeed, since the Thirteenth Amendment renders irrelevant the limitation on Congressional power over the slave trade contained at the beginning of Article I, section 9, the language abolishing slavery can take the place of that evil provision. The result is that what earlier looked like an embarrassing way to begin a bill of rights would be eliminated, and the most basic right---the right to be free from enslavement---would take its place, joining such rights as habeas corpus, free speech, free exercise of religion, protection against unreasonable searches and seizures, and the prohibition on bills of attainder. Under Madison's approach to amendments, the limitation on the amendment power to protect the slave trade, as well as the hated fugitive slave clause of Article IV, section 2, would likewise be removed from the Constitution.
Pretty neat, huh?
The proposed strike-through amendment I have been setting up with MOJ posts this week would also take something right out of the Constitution. Morally speaking, the provision does not approach the evil of the provisions protecting the institution of slavery in various ways. But it is out of step with some fundamental commitments of our American experiment in self-government.