Mirror of Justice

another response on authority/conscience

I had a couple of quick reactions to the useful discussion of authority/conscience.

First, the view that Steve mentions (as set forth by Father James Bretzke SJ) is precisely the view of conscience critiqued by Pope John Paul II in Veritatis Splendor (and critiqued by Pope Benedict in his numerous writings on conscience). In paragraph 32 of VS, JP II mentions that "certain currents of modern thought have gone so far as to exalt freedom to such an extent that it becomes an absolute, which would then be the source of values....The individual conscience is accorded the status of a supreme tribunal of moral judgment which hands down categorical and infallible decisions about good and evil. To the affirmation that one has a duty to follow one's conscience is unduly added the affirmation that one's moral judgment is true merely by the fact that it has its origins in the conscience. But in this way the inescapable claims of truth disappear, yielding their place to a criterion of sincerity, authenticity and 'being at peace with oneself,' so much so that some have come to adopt a radically subjectivistic conception of moral judgment."

This last point is quite important. Under the subjective understanding of conscience, the concepts of good and evil lose meaning. Under the subjective view, we are "infallible," and I realize that there is a attractiveness to that position. (I think that was the only time the idea of infallibility was used in the encyclical.) Our choices are beyond criticism (except in the rare cases when the choice is insincere).

Second, Pope John Paul tried in VS and other writings to counter the idea that adherence to a view of moral truth means that one is subject to the heteronomous commands of an arbitrary sovereign. In the Pope's view, the moral law is something that is built into our human nature. Living in the truth is the key to our genuine fulfillment and authentic freedom. Our adherence to the truth is our participation in the wisdom and providence of God.

Richard M.   

A Response to Authority/Conscience

I would like to thank Steve for his thoughts about authority and conscience. Over the last few years, he and I have respectfully exchanged views on both subjects separately and together along with other members of MOJ. I plan to offer a few thoughts to his early posting today on the subject of “authority/conscience.”

It may well be that there are some folks who would follow the Magisterium regardless of what it teaches. I for one think that most people who know what the Magisterium teaches and follow it do so because they have thought about what the Magisterium teaches and they also think about views which are not consistent with those of the Magisterium on the topic before consideration. They follow the Magisterium not out of blindness but out of a well-formed conscience and right reason.

For what it’s worth, human beings have always lived in a complex world, but that does not make the moral choice complex if one thinks about what is at stake. If all moral choices are “complex,” then relativism will triumph—be it the relativism of the “mystery of life” passage from Casey or the relativism of the individual who insists that “I was only following orders.”

The moral law, if it is true to its identity and what is constitutive of it, must be objective. The exercise of conscience, which is always crucial to moral decision making, must also be objective. With due respect to those who assert that conscience is first and last a purely subjective matter, I cannot agree with their contention. This view reflects the problematic formulation of Casey that it is up to the individual to determine the meaning of life, the mystery of the universe, etc. If, indeed, this understanding is correct, then how, as I have argued or suggested in previous postings, is the conflict about any moral decision, great or small, that will inevitably emerge, to be resolved? I take no dispute with the issue that it is ultimately the voice of God, but how is God’s voice to be received and understood? If it is always by the individual and nothing more, then Casey wins and God loses. Why?

John Courtney Murray was on target when he mentioned that “the right to do what my conscience tells me to do, simply because my conscience tells me to do it” is a “perilous theory.” As Murray further explained, the particular peril of this approach “is subjectivism—the notion that, in the end, it is my conscience, and not the objective truth, which determines what is right or wrong, true or false.” I can imagine that each of us who contribute to MOJ could claim that God has revealed to her or him what is right and what is wrong, what is true and what is false without any other mediating influence. In this case, we could all claim to be right and true. But, what happens when our views to which we claim rightness and truth conflict with one another?

It is, as I have suggested, the voice of God that mediates, but it is not the voice of God as presented by the view of purely “personal revelation.” God’s voice is an outside authority, and so is the voice of Peter and his successors which are essential to the process of the proper exercise of conscience. Without both, my exercise of conscience is simply what I think or what I feel, and not much more. Making into God that which is not is idolatry, even when that is only my naked conscience and nothing more. The well-formed conscience, as I have previously stated [HERE and HERE], is something more. 

I again thank Steve for his interesting points and look forward to further discussion with him and others on this subject.     RJA sj

God's sovereignty and Myanmar

Georgia law prof Randy Beck responds to my post on God and Myanmar as follows:

Coming from a Reformed Protestant perspective, I think you're right that for a theology grounded in Scripture, the sovereignty of God will be unavoidable. The theme is equally strong in the New Testament and the Old. The crucifixion of Christ, for instance, occurred "by God's set purpose and foreknowledge." (Acts 2:23)

The problem comes when people claim to know why God allows particular events to occur. Scripture offers a wide range of reasons why God might permit someone to suffer, and punishment for sin is only one of the possibilities. Christ dealt with this issue in Luke's gospel, rejecting the crowd's facile assumption that those who suffer must be worse sinners than other people. (Luke 13:1-5)

One thing Scripture does affirm is that God works all things for good--that he brings good even out of evil. (Rom. 8:28) I think that's the point of Joseph's comment to his brothers after they sold him into slavery, a sin that ultimately led to their survival in spite of famine: "You intended to harm me, but God intended it for good to accomplish what is now being done, the saving of many lives." (Gen. 50:20) To my mind, the sovereignty of a good God gives believers reason to hope even in a situation like the tragedy in Myanmar. Even this is not outside of God's control and He will bring good from it that we can't as yet anticipate.

The Communion of Saints and the Big Tent

Susan on her blog wonderfully expressed a view of Catholicism: “I saw an image of the apostolic line stretching forward from Peter through the Popes over the years through to the present day Pope.  I saw that it is that apostolic line that holds the structure of this tent we call Catholicism.” Others in the tent are moved by a different image (the two are not necessarily mutually exclusive), namely the communion of saints. Consider a part of the description of the communion of saints from Joan Chittister’s wonderful book on the Apostle’s Creed, In Search of Belief 178, 182 : “The Creed is talking . . . about the unity of strangers that forms about the image of Christ who calls us beyond our past into a demanding and sometimes lonely present. In communion with these people who have lived their faith to the end before us, we all trek on, alone but together, together but alone, depending on the hand and the sight of the other to take us further still . . . . The communion of saints is not about the sinlessness of those who went before us. It is about sinfulness transcended, made holy in the milling of everyday life, of everyday politics, of everyday ecclesiastical consternation. The communion of saints is every color, every level, every challenge of mankind. It is the cosmic vision of Christ made plain. It crosses time and culture and the quagmires of national politics and Church conflicts to leave us with the face of a Church that is human [and] is us at our best. It is the Christ-face drawn differently in every age by every people.”

 For Chittister, the Church is not the institution, but rather “the gathering of the seekers who celebrate the continuing presence of Christ among them, in them, and through them. The Church is the assembly of believers who are a sign of the Christian tradition, who make Jesus present now, who by serving, loving, proclaiming in the Jesus in whom they believe make the link between the human community and the touch of God in time.”

Authority/Conscience

There is a tendency to confuse the responsibility of the bishops to teach with the responsibility to determine in conscience whether the teachings of the bishops are acceptable. Some think it warranted to decide that they will follow the Magisterium regardless of what it teaches. James T. Bretzke, S.J., forcefully argues that the latter position is untenable in his A Morally Complex World: Engaging Contemporary Moral Theology 112: “To replace the authority of conscience as the ultimate voice of moral authority, even if it be the pope or the bishops, would open up a huge number of problems concerning authority and mature human action. Heteronomy, the imposition of the moral law from some outside source . . . is not the traditional Roman Catholic position. Whatever authority one believes is absolute is, in effect, the voice of God for that person, and if we allow any outside authority – no matter how respected – to supplant the individual’s conscience, then we are, in effect, making this heteronomous moral authority into God for that person. Making into a “god” that which is not truly God is idolatry . . . .”

Senator Grassley, religious freedom, and tax exemptions

Sen. Grassley (R-Iowa) is not happy with "prosperity gospel" ministers.  More here, by Steve Dillard.  Thoughts?  Is the Senator overreaching?

Vouchers, evidence, and ideology"

An excellent post -- with implications, I think, beyond the education-reform issue -- by Jay Greene, here.

Response to God and Myanmar

MOJ-reader Jonathan Watson had this to say regarding my post on God and Myanmar:

"You ask, 'What is it that prompts people to regard disaster or disease as God's punishment for being bad?' My response is that I believe that humans have an innate desire to see good action rewarded (hence, many Christians now and in the past viewing wealth as a reward for living virtuously) and evil activity punished (see the comments on Myanmar).

"In the end, we are left with Fr. Araujo's statement, and a similar from First Things here, by David Hart, an Orthodox theologian, [which states in part]: 'I do not believe we Christians are obliged — or even allowed — to look upon the devastation visited upon the coasts of the Indian Ocean and to console ourselves with vacuous cant about the mysterious course taken by God's goodness in this world, or to assure others that some ultimate meaning or purpose resides in so much misery. Ours is, after all, a religion of salvation; our faith is in a God who has come to rescue His creation from the absurdity of sin and the emptiness of death, and so we are permitted to hate these things with a perfect hatred. For while Christ takes the suffering of his creatures up into his own, it is not because he or they had need of suffering, but because he would not abandon his creatures to the grave. And while we know that the victory over evil and death has been won, we know also that it is a victory yet to come, and that creation therefore, as Paul says, groans in expectation of the glory that will one day be revealed. Until then, the world remains a place of struggle between light and darkness, truth and falsehood, life and death; and, in such a world, our portion is charity.'"

God and Myanmar

I share Susan's distress over comments attributing the Myanmar disaster to God's will.  But I don't find the comments especially puzzling -- in some cases, they are legitimate attempts to reconcile the world we see with God's sovereignty.  It's one thing to write off school shootings as products of free will, but it's much harder to do that with a natural world that seems hard-wired for human misery.  Explaining Myanmar as an exercise of God's sovereignty also makes a certain amount of logical sense after reading Scripture, particularly the Old Testament.  If God hardened Pharaoh's heart in order to keep him from freeing the Israelites, necessitating more plagues, why wouldn't it make sense that God would "clean up Myanmar" in this horrific manner?  One reason I have such a hard time reading the Old Testament is that it seems that God is continually breaking eggs in the course of making his proverbial omelet.  Modern sensibilities suggest that God's love for every single human person precludes Him from willing any amount of suffering for any single human person.  I hope that's the case.  The Bible does not exactly boost my confidence, though.

Evangelical Manifesto

Two days ago, a group of 80 evangelical leaders (including Jim Wallis, Os Guinness, Richard Mouw, and Dallas Willard) released "An Evangelical Manifesto."  The document's two purposes are "first to address the confusions and corruptions that attend the term evangelical in the United States and much of the Western world today, and second to clarify where we stand on issues that have caused consternation over Evangelicals in public life."  It is well worth reading.  It is also noteworthy that more polarizing figures such as James Dobson and Richard Land are not among the signatories.  And a spokesperson for Concerned Women for America said the manifesto was "blurring the distinctions between liberal and conservative" and confusing Christian voters about the most important issues: abortion and gay marriage.  Under this approach, I suppose that even discussing any issues other than abortion and gay marriage as relevant considerations for Christian voters must be written off as "confusing."

God and Myanmar

As we ponder Robert Araujo's question about the reponsibility to protect, I have another question.  I just read a blog post of a friend of mine recounting a comment from a coworker to the effect that the cyclone that hit Myanmar was God "cleaning things out over there."  What is it that prompts people to regard disaster or disease as God's punishment for being bad?  We heard some people say it about the tsunami.  We heard some people say it about 9/11.  And, if you remember back to the early days of the AIDs epedemic, there was no shortage of people proclaiming that AIDS was God's way of punishing homosexuals.  It all seems so inconsistent with my understanding of the God who loved us first and unconditionally (the subject of a blog post I coincidentally made earlier today) that I just don't get it.

The Responsibility to Protect—and Catholic Legal Theory

When His Holiness, Pope Benedict XVI spoke at the United Nations on April 18, he addressed the duty and responsibility to protect peoples—not only from gross violations of human rights but also in situations of humanitarian crises, human or natural. It strikes me that the current situation in Myanmar/Burma may provide a situation in which a difficult and uncooperative government is augmenting the dreadful suffering of the Burmese people who are experiencing the many tragedies of Cyclone Nargis. I am in the process of trying to develop some thoughts about what does Catholic legal theory have to say about the responsibility to protect. I begin with these words of Pope Benedict delivered during his UN address:

Recognition of the unity of the human family, and attention to the innate dignity of every man and woman, today find renewed emphasis in the principle of the responsibility to protect.  This has only recently been defined, but it was already present implicitly at the origins of the United Nations, and is now increasingly characteristic of its activity.  Every State has the primary duty to protect its own population from grave and sustained violations of human rights, as well as from the consequences of humanitarian crises, whether natural or man-made.  If States are unable to guarantee such protection, the international community must intervene with the juridical means provided in the United Nations Charter and in other international instruments.  The action of the international community and its institutions, provided that it respects the principles undergirding the international order, should never be interpreted as an unwarranted imposition or a limitation of sovereignty.

RJA sj

Introduction

I would like to thank Mark Sargent and Rick Garnett for inviting me to join the Mirror of Justice.  I have followed the blog for the past few years and appreciate the respectful engagement with often difficult issues.  As some of you know, I am particularly interested in how Catholic tradition informs questions related to poverty alleviation and interreligious dialogue.  I actually see one as a bridge to the other.  I believe that dialogue regarding policy and jurisprudential approaches to poverty (along with other social justice concerns) provides a tremendous opportunity for meaningful interaction with other communities. In my scholarship, I am most interested in dialogue with Islam.  My interest in Christian-Muslim dialogue was a pivotal factor in my choice to join the Jesuits many years ago.  Although my discernment in formation led me to conclude that I was not called to priesthood, I still feel called to a vocation in dialogue as a legal academic and am deeply grateful for my time in the Society of Jesus.  I look forward to many fruitful conversations on the Mirror of Justice.

Russell Powell

Seattle University School of Law

Models of Christian Legal Scholarship

Bill Brewbaker (Alabama) posts what looks to be a very interesting paper, Theory, Identity, Vocation: Three Models of Christian Legal Scholarship.  From the abstract:

Recognizably Christian scholarship is becoming more commonplace in the American legal academy, yet little systematic attention has been given to fundamental questions of approach. This article highlights moments of continuity and discontinuity between Christian legal scholarship and its secular counterparts. Contrary to the expectations generated by contemporary political debate, the distinctive contribution of Christian legal scholarship is not primarily to provide ammunition for political programs of the right or the left, but to situate law and human legal practices within a larger story about the world.

The "vocation" model seems particularly interesting:

Finally, a vocation model emphasizes that legal scholarship is one of many human (and not merely Christian) callings, the point of which, as with other such callings, is the glory and enjoyment of God. In order to know what pleases God, the scholar will need to study the Scriptures and theology; he or she will need the church. But the scholar will also need to study God's creation, including not only the world God has made directly, but also those relevant human institutions that, in God's providence, inhabit it. On this view, there is no reason to prescribe a uniform methodology for Christian legal scholars, nor should we necessarily expect widespread agreement among Christians on contestible legal issues.

Tom

Frans de Waal Answers Your Primate Questions

Frans de Waal, as you may know, directs the Yerkes Primate Center at Emory University (where I and many other primates teach).  If you follow this link, you'll find a host of fascinating comments about everything from nonprocreative sex (it works for our primate cousins, the bonobos) to income inequality (could be the downfall of us human primates).  Interesting stuff!

More on Obama and Judges

In reaction to Rick and Rob on Obama, I think that we do not want judges (in constitutional and statutory cases) to carry out "their broader vision of what America should be," but that we do want judges who can understand (or try to understand) "what it's like to be gay, poor, or black" (as well as other characteristics; I do think there's a problem with overly selective sympathy).  Sympathy for the real-world conditions of people is a judicial virtue, not because the judge is suppose to enact that sympathy solely or in the face of the law, but because it is often essential to giving meaning to the directives of the law (constitutional or statutory).  Interpretation, even an under an originalist analysis, often requires making an analogy (or disanalogy) between the context of the enactment and the context today.  For example, could a justice have voted to strike down school segregation in Brown without making some judgment that segregation denied equality to people in an analogous way to the black codes of 1868, and that education had become so pervasive a factor in people's opportunities by 1954 that it was analogous to the rights (property, contracts, etc.) as to which the 1868 framers meant to guarantee equality?  Would a justice be able to reach those conclusions, or even address those questions, without trying to imagine "what it [was] like to be black" in segregated societies/schools"?

As another example, I've found that asserting the constitutional right to bring religion into the public square -- a well-grounded right historically, but one whose contours in current situations are not entirely clear -- won't succeed unless judges try to sympathize with the religious believer facing the state: the student who wants to do a religious paper topic in class over a teacher's objection, or the family that wants their religious choice included equally in a school choice program as against the state's teacher's lobby and Blaine Amendment history.  Without thinking "what it's like to be a serious religious believer," judges tend to say "I don't see that you're that burdened; you can still practice your religion at church and home."

Tom

Memory and Intelligence

I know this is not really on topic, but I’ve always been interested in the connections between memory and intelligence, perhaps because I’m so absent-minded.  And I never like to miss an opportunity to plug a Borges short-story. (Borges is the Simpsons of literary reference, since virtually any topic of conversation can be connected in some way to one of his stories.)  This story in USA Today about a woman who can remember every day of her life since age 14 is terrifically interesting, particularly because of the trouble she has with abstract concepts.   It calls to mind the Borges story, Funes el memorioso (Funes, the Memorious), about Irineo Funes, a young man who, after a fall from a horse, remembers every detail of everything he experiences.  Borges talks about how Funes, who is bed-ridden after his fall, passed the time.  On several occasions, he recalled his memories of particular days in the past, a project that, each time, took an entire day.  On another occasion, using his powers of memory, he created a numbering system in which every number had a different name (names like “Luis Melian Lanifur” and “Agustin de Vedia”).  At the end of the story, Borges ventures some comments on the connections between memory and thought.  Describing Funes, he says:

He had effortlessly learned English, French, Portuguese, Latin.  I suspect, nevertheless, that he was not very good at thinking.  To think is to ignore (or forget) differences, to generalize, to abstract.  In the teeming world of Ireneo Funes, there was nothing but particulars — they were virtually immediate particulars.

The comment about about ignoring is interesting (and additional proof of Borges’s perceptiveness), because the USA Today story talks about another person with a prodigious memory who has no trouble with abstract concepts.  The difference between the man with perfect memory who can abstract and the woman who cannot seems to be the control the man has over his memories.  The woman describes them as crowding in on her even when she doesn’t want them, while the man talks about his ability to call them up at will.  So Borges is correct in suggesting that perfect memory may not be fatal to the ability to generalize and abstract if one has sufficient control over his thoughts to be able to ignore the memories when they’re not useful.  In any event, the possibility that a certain degree of forgetting is actually helpful for thinking has always given me some hope.

A Post-Doc Opportunity

[In case some MOJ readers are interested:]

UNIVERSITY OF OXFORD

Faculty of Theology

Post-Doctoral Fellowship in Christian Ethics and Public Life

Grade 7, £26,666 p.a.

Applications are invited for a Post-Doctoral Fellowship in Christian Ethics and Public Life, tenable from 1 October 2008 or as soon as possible thereafter. This fixed-term, 5 year position is designed to provide an outstanding academic at an early stage in their career with opportunities for research, teaching, and collaborative work. The initial starting salary for this post is fixed due to the nature of the funding, but annual increments and national pay awards will be payable.

 The fellowship is tenable in the Faculty of Theology, associated with the new McDonald Centre for Theology, Ethics, and Public Life, and carries with it membership of the Senior Common Room at Christ Church.

The successful candidate will hold a doctorate in Christian ethics/moral theology or in a related field. He or she will also show evidence of potential for producing distinguished research in the field of Christian theology, ethics, and public life; the ability to bring advanced research projects to fruition; the ability to teach in Christian ethics/moral theology to a high standard; and competence to engage in collaborative work.

Further particulars, including details of how to apply, are available from the Faculty Board Secretary, The Theology Faculty Centre, 41 St Giles,

Oxford,

OX1 3LW.

E-mail: catherine.mckiernan@humanities.ox.ac.uk

Telephone: +44 (0)1865 270791 The closing date for applications is 2 June 2008.

The Indiana Primary and the Catholic Vote

Given that Senator Hillary Clinton was coming off the best two weeks of her campaign, while Senator Barack Obama was experiencing the worst two weeks of his campaign, Clinton’s slender victory in Indiana and landslide loss in North Carolina is nearly unadulturated bad news for her presidential aspirations. Sure it could have be a little worse. She actually could have lost Indiana. And, for a while last night around midnight, that possibility was looming large. Lake County, Indiana, where Obama was expected to do well (especially in Gary), came under the national spotlight for withholding reporting of votes for many hours after the polls closed. A win in Indiana may allow her to limp on for another week or two. But I don’t know of anyone outside of the Clinton campaign who still thinks she can find a way to the nomination.

As is often the case in politics, the significance of last night’s results depends in good part on how the expectations game was played. Only a month ago, before Pennsylvania and the return of Jeremiah Wright, Obama was expected to win North Carolina by 20 or more points and was thought to be at least even with Clinton in his neighboring state of Indiana. Thus, from that previous point of expectations, last night’s outcomes were unremarkable. But expectations after Pennsylvania and with the Wright controversy had changed dramatically, making anything less than a very good night for Clinton the equivalent of a great loss in the expectations game. And rewinding the campaign back a month in terms of expectations and comparative momentum would hardly benefit Clinton. Back then, she was on the ropes, before Pennsylvania breathed new life into her campaign — temporarily it now appears.

But while last night’s close contest in Indiana and lopsided result in North Carolina reflect a significant shift in the ebb and flow between the two candidates, a closer look at the results (at least in Indiana) suggests a remarkable and continuing stability in the general trends of the Democratic primary vote by demographic groups. The more things change in the prospects of the two candidates, the more they stay the same in terms of how different segments of the electorate have responded to their candidacies.

In series of posts over the past couple of months (here, here, and here), I’ve charted the Catholic vote in the Democratic primaries, documenting the overwhelming advantage that Clinton has enjoyed (and disadvantage that Obama has suffered) among Catholic voters. In the two states that held elections yesterday, Catholics were a smaller segment of the primary electorate, as compared with such earlier primary states as Rhode Island (55 percent), Massachusetts (45 percent), Pennsylvania (36 percent), California (34 percent), and even Ohio (23 percent).

North Carolina has a very small Catholic population, such that Catholics were only about 8 percent of Democratic primary voters yesterday. Thus, North Carolina doesn’t fit the same profile as those previous primary states with substantial Catholic populations and venerable Catholic communities, among which Senator Clinton has compiled huge margins. Clinton did win the overall Catholic vote in North Carolina, even while the state was going by a large margin for Senator Obama, but only by 51-48 percent. Clinton’s margin among white Catholics climbed up to 58-41, which is a bit closer to the larger Catholic margins experienced elsewhere.

By contrast, the basic Catholic voting pattern remained in place in Indiana, although it was somewhat less pronounced than in most previous contests. In Indiana, Catholics accounted for 19 percent of Democratic primary voters. Clinton carried that Catholic vote by a 22 point margin (61-39 percent). While that is a comfortable victory by any estimation, it does fall short of the more than two-to-one and even close to three-to-one rout of Obama among Catholic voters that we have seen in prior state primary votes.

What might account for the reduced Clinton margin among Catholic voters in Indiana, as compared with such nearby states as Pennsylvania and Ohio? At least three possibilities suggest themselves.

● First, perhaps Obama’s free fall among Catholic voters has bottomed-out. If this is true, while Obama still faces an up-hill climb to secure Catholic votes, the incline may not be quite as steep as previously.

● Second, because Indiana lies in Illinois Senator Obama’s backyard, the demographic results in the Indiana primary may be anomalous. After all, for purposes of divining national trends, no one places much weight on how Obama fared among various demographic groups in his home state Illinois primary (where he still lost the Catholic vote to Clinton, but by a closer 50-48 margin).

● Third, the overall Indiana Catholic vote results may indicate a unique “South Bend Effect.” In South Bend, home of the nation’s leading Catholic university, Notre Dame, the unusual mix of demographics created interesting and conflicting tugs and pushes with respect to the Obama and Clinton candidacies. Catholics generally have moved toward Clinton in big numbers (and, in addition, South Bend has a larger blue-collar population, another pro-Clinton constituency, than the average college town). By contrast, affluent white liberals and young people, more prevalent of course in university communities, have gone heavily for Obama in Democratic primary votes. Yesterday, Obama did win St. Joseph County, in which South Bend is the county seat, but by the modest margin of 53-47 percent. By comparison, Obama won Monroe County, where the University of Indiana-Bloomington is located, by 65-35 percent. We would hypothesize that Obama’s margin among non-Catholics in the South Bend area was substantially larger than 53-47 (observing also that almost a quarter of South Bend’s population is African-American, a constituency that has voted for Obama by nearly 90 percent). Thus, Obama probably lost the Catholic vote even in St. Joseph County. But the margin of defeat for Obama among Catholics in South Bend-St. Joseph County presumably was smaller and thus may have had the effect of diluting the heavier tilt toward Clinton among Catholic primary voters elsewhere in Indiana. Our friends at Notre Dame may have a better sense of the reality on the ground there yesterday. If there was a “South Bend Effect” at play yesterday in Indiana, it is not something likely to be replicated elsewhere in the country.

Whatever the reason, and it may well be a combination of all three of these theories and others, losing the Catholic vote in Indiana by only 22 points, rather than 30 or 40 points as elsewhere, should hardly be grounds for celebration in the Obama camp.

Whether the few remaining primary contests will shed any further light on our subject — by way of either confirming the continued and substantial Catholic deficit for Obama or showing that the gap may be narrowing — is hard to say, but I think doubtful.

West Virginia holds its primary next week on May 13, but it is among the ten states with the lowest levels of Catholic adherents (only about 6 percent).

The populations of Kentucky and Oregon, which hold their primaries on May 20, are only about ten percent Catholic. Still, given that Catholics traditionally have leaned Democratic and also tend to turn out to vote more reliably than most other groups, the Catholic portion of the primary vote may be somewhat higher. Oregon offers an interesting political case for other reasons, as those of us who do empirical work on religious demographics recognize it as one of the most secular states in the union (and, not incidentally and also consistently with other voting trends during this primary season, therefore looks to be a lock for Obama).

Looking ahead to June 3, Montana (with just under 20 percent) and South Dakota (with nearly 25 percent) have robust Catholic populations, which again may prove to be an even higher proportion of the Democratic primary voting electorate. And, of course, there is Puerto Rico on June 3 as well, which is overwhelmingly Catholic (85 percent), but also overwhelming Latino, a community that has not warmed to Obama.

But it now is hard to see a fully-fueld Democratic race racing along all the way to June 3. First, Senator Clinton may recognize the realities of the situation and drop out. Second, the super-delegates may shift to Obama in sufficient numbers to give him the majority of the delegates, thus ending any remaining suspense. Or, third, Clinton may stay in the race and plug along, but receive increasingly less attention from either pundits or voters — much as was the case with Governor Mike Huckabee, who stubbornly refused to withdraw from the GOP contest, even though it was clear that Senator John McCain was too far ahead to be denied the Republican nomination.

So, at least until Clinton pulls the plug on her campaign, we’re on to West Virginia next week. But it’s hard to believe a meaningful contest will carry on much beyond that.

Greg Sisk

Improving the Return of Inmates to Society

I commented a couple of weeks ago, in response to a post by Michael P. about a NYT report regarding the prison population in the US, on the failure to provide sufficient assistance to released inmate to facilite their reintegration into society.

Two new Urban Institute reports discuss how more can be done to "improve the odds of inmates' successful return to society," through partnership between local jails and community organizations.  Life after Lockup: Improving Reenty from Jail to Community examines concrete reenty steps and profiles a number of reetnry programs around the United States.  The Jail Administrator's Toolkit for Reentry "is a handbook on such issues as assessment of inmates' needs, identifying community resources, educating the public, and measuring success."  The news release accompanying the reports observes that in an average 3-week period, local jails have contact with as many people as state and federal prisons do in an entire year, creating great potential for their assistance in the transition from incarceration to society.

Pictures of Hiroshima

Some new pictures of the aftermath of the bombing of Hiroshima are here.  (Warning:  The pictures are graphic and heart-rending.)  (HT:  Vox Nova).

Response to Rob

Thanks to Rob for his as-per-usual thoughtful response to my invitation that we discuss Sen. Obama's recent statement about the role and work of courts.  After incorporating by reference the disclaimers and "givens" in my own post on the subject . . . a few thoughts:

Rob quoted Sen. Obama's earlier statement that, in about 5% of cases, “you’ve got to look at what is in the justice’s heart, what’s their broader vision of what America should be,” Obama said, adding that justices should understand what it’s like to be gay, poor or black as well.  I'm not sure, but I'm inclined to disagree.  Now, we all know that, in fact, judges are not and cannot be robots or automatons.  Still, it seems to me that we should want judges to understand their role as one that calls on them to try not to consult their "broader vision of what America should be", but should instead understand it to be the role of politically accountable actors to engage in such consultation.  (Again, no one really thinks, and therefore I don't, that judges' worldviews and experiences don't shape, at all, their enterprise of identifying the law's binding content and applying it.)

Rob and I agree that "the notion that any judge should subvert the rule of law in order to establish a particular substantive vision of justice is problematic."  My own reading of Sen. Obama's statements during the confirmation processes involving Chief Justice Roberts and Justice Alito make me think that, in fact, he does believe that the merits of a judge's work are closely tied to the whether the substantive outcomes in the judge's cases accord with Sen. Obama's "particular substantive vision of justice".  (See, e.g., this statement, explaining his vote against Justice Alito.)  (And, there's the fact that, for Sen. Obama, a judge's commitment to standing for social justice is one that will also lead him or her to maximally protect abortion rights.)  Now, to be clear, I have no doubt that some "conservative" Justices, commentators, politicians, and law professors make this same mistake.  My point here is -- it really is -- less a partisan, "Obama v. McCain" one than a broader one about what we think the role and vocation of a judge does and should involve.  It seems to me that, in a democracy governed by a written Constitution, a federal appellate judge ought to try, to the extent she can, not to ask "what it is like" to be _____.  And, it seems to me that this way of thinking about such judges' work and role is most consistent with Catholics' rule-of-law and justice commitments.  Thoughts?

Defending Obama

I'm probably not the best person to defend Barack Obama's view of judges, since I'm also troubled by various comments he's made over the last few months, but maybe his view is not as egregious as it seems.  We can't forget that President Bush's best defense of Harriet Miers' qualification for the Supreme Court was his knowledge of her "heart."  (OK, given how that episode turned out, maybe that's a bad example.) 

Obama has suggested that, in his view, 95% of Supreme Court cases can be decided strictly by intellect, but 5% require us to look into a justice's heart, to "their broader vision of what America should be."  Is this notion all that controversial anymore?  Take the jurisprudence of Clarence Thomas, for example.  It seems obvious that his experience as an African American shapes his view of affirmative action and school desegregation cases, and he gives voice to those views in a way that appears to defy the boundaries of the sterile "umpire" role espoused by Chief Justice Roberts.  Is it wrong for Justice Thomas to do so?  Is it even possible for him (and other judges) not to see their cases through the lenses of their own life experiences?

To be sure, the notion that any judge should subvert the rule of law in order to establish a particular substantive vision of justice is problematic.  But I don't think Obama's comments justify a conclusion that he stands for that extreme position.  Read most charitably, perhaps he's just bringing the inescapable human dimension of judging to the surface of our political discourse.  Should Catholic legal theorists resist that acknowledgment?  After all, if we could create nine robots who were programmed to apply a textualist theory of constitutional interpretation, we'd have to come to grips with rolling back not only Griswold and Roe, but also Brown, Meyer and Pierce, for example.  Don't all of these cases require judges to stand up for "social justice?"  Isn't a significant part of the judicial battle about what "social justice" entails? 

Put simply, do we disagree with Obama because he is wrong, or because he is airing a truth that we don't like to acknowledge?

"The Idolatry of America"

Damon Linker, of "Theocons" fame, argues in this New Republic book review that, among other things, "the political ascendancy of the religious right has been bad for the United States".  The book under reivew, Charles Marsh's Wayward Christian Soldiers, contends, among other things, that "the politicization of Christianity in recent years--using the good name and moral commandments of the church to 'serve national ambitions, strengthen middle-class values, and justify war'--has been spiritually disastrous for evangelicalism in the United States."

In Linker's view, though, Marsh goes too far, and sets the bar for Christians too high.  He concludes:

Certain kinds of believers will accept with composure the compromises and the imperfections of political life. They will not be discouraged, but at once chastened and emboldened by the knowledge that on this side of eternity our saints will not be statesmen and our statesmen will not be saints. Yet others will respond differently to the tragic conflicts at the core of the human condition. With their gaze transfixed by a vision of a more perfect world, they will be tempted to turn their backs on the realm of the profane and its merely human pursuits, including politics. We should be grateful to Charles Marsh for reminding us of the nobility of the true believers. And yet those of us who do not share their faith cannot help but wonder about the moral status of their impulse to secede from the often mundane duties and responsibilities of political citizenship, all the while scolding those who freely take on those duties and responsibilities. When does the fixation on one's own purity lapse into self-indulgence? This is a question for which Marsh has amply prepared us, but to which he has not even begun to supply an answer.

Judges and justice

Responding to Sen. McCain's recent speech on judges and the Constitution, Sen. Obama issued the following statement:

The Straight Talk Express took another sharp right turn today as John McCain promised his conservative base four more years of out-of-touch judges that would threaten a woman's right to choose, gut the campaign finance reform that bears his own name, and trample the rights and interests of the American people. Barack Obama has always believed that our courts should stand up for social and economic justice, and what's truly elitist is to appoint judges who will protect the powerful and leave ordinary Americans to fend for themselves.

Let's put aside, for now, the claim that Sen. McCain promised judges who would "trample the rights and interests of the American people."  What about the suggestion that "our courts should stand up for social and economic justice"?  Should they really?  What does this mean?  What do / should we think about this suggestion?  Discuss!  [Disclosure:  I am a member of Sen. McCain's "Justice Advisory Committee".]

Update:  Bainbridge weighs in.  Other thoughts?  Let's even put aside the question, about which we all know we here at MOJ disagree, about whether, on balance, Sen. Obama or Sen. McCain is the better choice for President.  And, let's take it as given -- as we should -- that we all, despite our disagreements, believe that politics should aim at achieving and protecting "social and economic justice".  What do we think about the proposal that "courts should stand up for social and economic justice"?