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, March 8, 2004

Symposium on the Blaine Amendments

The latest volume of the First Amendment Law Review is a symposium on the Blaine Amendments specifically, and the "Separation of Church and State" more generally. Oddly enough, the volume was actually published on the day the Court decided Locke v. Davey. My own essay, "The Theology of the Blaine Amendments," is included, as are several others that will be of interest to Mirror of Justice readers. In particular, Fred Gedicks explores the question whether these provisions have retained their anti-Catholic "social meaning" (here), and Marc Stern contends that, to the extent the Blaine Amendments were anti-Catholic, they were an understandable reaction to the anti-liberalism of certain 19th Century papal statements (here).

Any thoughts?

Rick

Sunday, March 7, 2004

New paper on subsidiarity

Thanks -- yet again -- to Larry Solum for the tip on this paper by Nick Barber, "The Limited Modesty of Subsidiarity." Much of the paper is devoted to exploring what the author regards as the differences between the "Catholic doctrine of subsidiarity" and the version that plays such an important role in the "constitutional structure of the European Union." Barber seems intent on demonstrating that EU subsidiarity can stand on its own, and should be evaluated on its own, wholly and apart from the Catholic model. As he puts it, "the European model could gain support from a variety of political positions, and need not rest on the same ideological arguments as the Catholic doctrine."

In particular -- and this seems quite relevant to many of the policy disagreements that we have already seen on this blog! -- Barber spends time developing the claim that, unlike the EU doctrine, the Catholic version of subsidiarity contains "no bias against centralisation." Rather, "the Catholic doctrine requires that . . . power be allocated to the correct institution."

Barber also notes that European doctrine, unlike (in his view) Catholic doctrine, "takes account of human weaknesses," and "recognises that apparent advantages of centralising can sometimes be overstated, or can evaporate after the shift has taken place."

I would appreciate the reactions of my colleagues -- including Paolo, Rob, and Steve -- who have written recently about the notion of subsidiarity. I found the paper quite provocative and interesting, particularly the (largely, but not always, implicit) claim that while the Catholic notion of subsidiarity is compelling when it comes to civil society, families, and mediating associations, it is -- precisely because it (allegedly) worries too little about centralization -- less helpful when it comes to questions of allocating state power.

Rick

Two Interesting-Looking Articles

Over at Larry Solum's Legal Theory blog, there are links to (at least) two relatively recent papers that will likely be of interest to "Mirror of Justice" readers. First, Larry's "Download of the Week" is a paper entitled, "Unjust War," by Jeff McMahan of Rutgers (available here).

Also, the University of Minnesota's Oren Gross has posted on the SSRN his paper, "The Prohibition of Torture and the Limits of Law." Here is the abstract:

"The debate about the moral and legal nature of the prohibition on torture and about the permissibility of carving out exceptions to that ban is generally conceptualized as a clash between two opposing poles with no middle ground between them. One may support an absolute ban on torture. Alternatively, one may believe that the duty not to torture, even if generally desirable and laudable, does not apply in certain exceptional circumstances, or, even if it does apply, is overridden, canceled or trumped by competing values.

This paper defends an absolute prohibition on torture while, at the same time, arguing that truly catastrophic cases, such as the paradigmatic ticking-bomb scenario, should not be brushed aside as merely hypothetical or as either morally or legally irrelevant. The paper suggests that the way to deal with the "extreme" or "catastrophic" case is neither by reading it out of the equation nor by using it as the center-piece for establishing general policies. Rather, the focus is turned to the possibility that truly exceptional cases may give rise to official disobedience, i.e., public officials may step outside the legal framework and be ready to accept the legal ramifications of their actions. I argue that the prospect of extralegal action supports and strengthens the possibility of formulating and maintaining an absolute prohibition on torture."

It does not appear (unfortunately) that Gross engages specifically with the work of my colleague John Finnis, whose work on "exceptionless moral norms" would seem relevant here. See, e.g., Moral Absolutes: Tradition, Revision, and Truth (1991) (available here).

Rick

The Criminal Law's "Special Part"

This weekend, the Louisiana State University Law Center is hosting a conference on "The Theory of the Criminal Law’s 'Special Part'"; that is, on the "dimension of criminal law that identifies and defines the specific offenses that are subject to criminal sanctions." Click here for more information. I regret that I am not able to attend, and would welcome reports from anyone who did attend.

Rick

Saturday, March 6, 2004

2004 and Beyond

As many of you know, I have strong thoughts about this election and the current differences between the Democratic and Republican parties. I am much more passionate, however, about our common CST project, which transcends politics, political parties, and this election year. The Church's social teaching will always be in tension (and hopefully dialogue) with the state and the political parties. As Catholic lawyers and academics who are committed to the Catholic faith and the Social Teaching that flows from that faith, we can use our talents to tease out the implications of Catholic Social Teaching for the law in a pluralistic secular state, confront specific structures of injustice, and work to expose the danger of building a society of liberty and equality for all on the sandy foundation of the autonomous individual while proposing a vibrant and viable alternative rooted in a Catholic understanding of the human person.

To be sure, this election is part of that puzzle, but to my mind it is but a small part of the attempt to transform our culture from a culture of death (in all its forms - abortion, materialism, etc) into a culture of life that values the dignity of each individual and that understands that the common good is something more than the aggregate of individual preferences and desires.

On all fronts, we have our work cut out for us. Just as an example, last weekend, I judged ten or twelve high school Lincoln-Douglas value debate rounds where the issue pitted individual liberty v. the common good. Not surprisingly every debater (including the ones from the Catholic high school) viewed liberty through the prism of liberal individualism and every debater viewed the common good as the aggregate of individual conceptions of the good.

My question to my fellow bloggers, how do we re-introduce an alternate (and more realistic) conception of the person and society into a culture that largely has not been trained to hear or make sense of our arguments? In other words, how do we get traction? Paolo, does Luigi Guisanni have any insights that might help us here?

Yes, but...

I'd like to respond to Rick's quibble re my post with a classic Catholic response: "yes, but..." (And this will be my last post on Kerry and the election as well!) Rick is absolutely right on the Democrats' record on school choice and now on their attitude toward Catholic health care. Their positions on those issues are of a piece on their position with abortion, and can be added to the reasons why I can't be comfortable with or, more important, welcome in the party. The Republicans obviously are better on school choice as well as abortion. There's my "yes" in response to Rick. But I believe that Republican enthusiasm for religion extends only to the religious right. And "religion" does not equal the "religious right." The religious spectrum (including the Catholic spectrum) is much broader than that, and I am not sure that the kind of Catholic values that Vince is talking about would be welcome under the Republican tent. I suppose the Democrats are somewhat more "statist" than the Republicans (although the Republicans are always delighted to use the state to favor their pet special interests), and they are clearly more inclined to favor a strict seperation of Church and State, but when one evaluates the substance of their policies on whole host of issues that resonate in Catholic Social Thought - race, poverty, war and peace, capital punishment, the dignity of labor, the value of community - they tend to be more consistent with what I and Vince would regard as core Catholic values, even if they derive those policies from entirely secular principles. That being said, I remain as unhappy with each party as I was before -- although Rick has usefully reminded me of some other reasons why I should be unhappy with the Dems.

-- Mark

Friday, March 5, 2004

Catholics and American Politics: A Quibble

As Mark predicted when we launched this blog, the group of us disagree strongly when it comes to translating, applying, and (perhaps) rank-ordering the principles of Catholic Social Thought in the rough-and-tumble of political life. Although I am, I admit, a hopeless political junkie, I do not plan to post (after this) on the Bush v. Kerry / Election 2004 matter. A few quick thoughts, though, "for the record":

In my view, Mark's statement -- "the Republicans are usually wrong about everything else (i.e., other than abortion) we care about as Catholics" -- leaves out (at least) two other crucial issues where, in my judgment, the Republican position is to be preferred by Catholics: Educational choice and religious freedom. The Democrats' current implacable and total opposition to school choice (and the hostility to religious schools that often underlies that opposition) is, to me, much more scandalous than, say, the Republicans' support for lower taxes. On my reading, Catholic teaching is unambiguous on this point: parents have the right to choose religious schools for their children, and governments ought to assist poor parents in exercising this right. In addition, on the question of the autonomy, independence, and integrity of religious institutions, hospitals, associations, schools, etc., I think the Republican platform is, on balance, to be preferred. The recent Catholic Charities case, and the efforts underway to require Catholic hospitals to perform abortions, provide, I think, some support for my belief.

Also, and in candor, I do not recognize the "overall political project of the Republican party" -- which is said to be "extremely hostile to a Catholic worldview" -- in the descriptions and discussion provided by my friend and colleague Vince (any more than, I expect, he and I would recognize the "overall political project of the Democratic Party" if someone were to describe it as a project of relentless secularization, social atomism, political statism, and moral relativism). It is far from obvious to me that it is distinctively part of the Republican project (rather than a fault with American culture generally) to celebrate the "aggressive pursuit of wealth," to support a "consumer culture driven by materialism and in which success is measured by how much money you make," or to direct "public money . . . to the business of favored campaign contributors."

I hope my colleagues agree that informed, thoughtful, conscientious CST Catholics can conclude that, at the moment, the Republican package is to be preferred, and that those who come to this conclusion do not dislike the elderly, are not indifferent to the poor, and believe that wars should be rare and must be just. We believe -- reasonably, even if not correctly -- that human dignity and the common good are, on balance, better served, and Catholic Social Teaching better actualized, by programs that emanate from commitments to de-centralized and limited government, to a public square that welcomes and protects religious argument and activity, to moral realism in foreign policy, and to -- where and to the extent appropiate -- cost-benefit and results-oriented analysis in economic and social-welfare policy.

In any event, I hope this exchange between disagreeing friends will confirm for "Mirror of Justice" readers that Catholic Social Teaching is a rich resource for anyone hoping to live faithfully as an engaged citizen. I certainly believe that my colleagues have that goal, and I hope they believe just as strongly that I share it.

Rick


UPDATE: A Notre Dame law student (with a blog) disagrees with my statements above about school choice. She writes:

I agree that parents should across the board be able to choose religious schools for their children; but I cannot concede that voucher programs are the best way to do that. . . . I am fortunate that my parents were in a position to make an authentic faith choice to send me to Catholic schools. . . . I don't feel as though I endured any detriment for that choice; but I know too that poor parents in our nation's most volatile places don't have the same choice my parents had. And for that reason, I can't really accept the band-aid solution of school vouchers, even as a temporary measure. An educated populace is essential not only to out nation's continued survival and progress but also to its security. Our commitment to education as a right and a necessity is not served by an active acknowledgement that sometimes the only good decision is flight from public schools. While school vouchers may enable some parents to make a faith choice to send their children to religious schools, they are essentially a herald that public schools are too often dangerous and ineffective. Parents should certainly be able to make a faith choice -- but they should not be forced to make a quality choice."

I very much appreciate this student's thoughts. In my judgment, though, these are not convincing arguments against school vouchers for low-income parents who believe that their children are not being well served in the government-run schools (I also think that, for what it's worth, the CST tradition weighs heavily against these arguments). Still, I encourage readers to check out this student's blog and post.

Catholics and American Politics

I just wanted to echo the themes of Mark's post, particularly point (4). I really don't think Catholics have a home in the American political scene as it is currently organized. I guess I'd place myself with Mark as a "seamless garment" Catholic as well. Inasmuch as we are devoted here to relfections on Catholic social teaching, it's important to remember that the social teaching exhorts Catholics to a lived faith in the broadest sense.

Abortion raises fundamental life issues, but do we throw our support to the Republican party based on that alone? There is very little that can be done about abortion in the political realm right now, which doesn't mean we should give up, but I have serious questions about the disinterest I perceive in many Catholics regarding fundamental questions of justice that they can do something about, but choose not to address. The overall politcal project of the Republican party is extremely hostile to a Catholic worldview. I refer back to Mark's earlier post regarding corporate law, in which he highlights the fundamental differences in the underlying assumptions about the role of economic life in Catholic thought versus the aggressive free-market liberalism that drives Republican economic policy.

More damning for the Republicans from the Catholic perspective is the destructive nature of this economic project on things that ought to be of fundamental concern to us. How can families thrive in a culture dominated by the aggressive pursuit of wealth? How can we expect young people to be open to children in a consumer culture driven by materialism and in which success is measured by how much money you make? How can people of limited means live in dignity when Congress cuts taxes for the wealthy and then suggests that Social Security should be cut to remedy the huge budget defecit these tax breaks have caused? Why are Republicans so hostile to the power of the state when it used to support the weak, but see no problem when the state props up insolvent industries and coroporations, or when public money is directed to the business of favored campaign contributors?

I do not say all this to absolve the Democrats (see my earliest posts), but the Republicans are not the solution. Perhaps we need to be thinking about new methods of political engagement for Catholics, methods that challenge the injustices that permeate the current arrangements. Catholics need to draw attention to a range of issues that threaten the dignity of the human person, and historically, Catholicism has been able to thrive in civil socities that were hostile to its core values. Catholic universities ought to be platform for a more radical confrontation of a society that has lost its way. This may mean that Catholics will not be prominent in the ranks of the current parties, but political action is not the only venue for social change. One way to spur the creation of new parties is to refuse to participate in the current ones. This might even stimulate some political reform in this country, which is long overdue.

Vince

Minor Oops (II)

I need proofreading help. In numbered paragraph (1), I meant "as they became with CONTRACEPTION" not "abortion" I hope I wasn't being unconsciously prophetic.

Is There Room for the Seamless Garment in American Politics? Or, the Tragedy of the Catholic Liberal

Greg Sisks's post and Rob Vischer's follow up raise so many issues it is hard to know where to begin. Let me try to parse them out, and then add some comments where appropriate.

1. The Religious question:Kerry's position on abortion raises the very familiar question of what responsibility a Catholic public official has AS A CATHOLIC with respect to well-established positions of the Church in the conduct of her public responsibilities. It also raises the corollary question of what the consequences for that person's status within the Church should be if she fails to meet those responsibilities. For example, does a Catholic legislator or executive have a religious obligation to vote against, otherwise oppose, or take affirmative action against laws or policies that would violate the Church's strictures on abortion, euthanasia, same sex marriage and so on? What is the range of issues to which that obligation extends? Are their prudential limits, particularly when the church's position and the values of the polity are widely out of sync, as they became re abortion? If that person is so obligated, and fails to do so, what should be the religious consequences? Excommunication? Exclusion from full participation? Or just a sin on her conscience? I will leave it to those more learned than I am theologically to comment on that.

2. The Cuomo question: Many Catholic Democrats have taken the Cuomo position -- personal opposition to legalization of abortion (on Catholic principles, presumably), but refusal to oppose it publicly, because that would be inflicting private, religious values on persons who do not share them. Two problems here. First, is that an adequate position from a religious standpoit, ie, is it justifiable for a Catholic? Second, does it make sense as a statement of political philosophy, ie, that one should not oppose a law even though one has serious religious (or even secular moral) reservations about it, because that would be "inflicting" values that others do not share upon others? Or is this only a problem when those values are religious? Obviously, this is an aspect of the religion in the public square problem.

3. The Historical question: The Kerry-as-a-Catholic problem raises interesting historical questions. The "Catholic question" has changed a bit since Kennedy in 1960. At that time, there was still the old concern that Catholics could not be trusted in the democracy because they had to take orders from a foreign power, ie the Pope. Paul Blanshard's scurrilous Cathloic Power and American Democracy had been a best seller only a few years before, and reiterated the old fear that Rome was just waiting for its chance to take us over -- modernized through an analogy to that other aggressive totalitarian threat, the Soviet Union. Kennedy managed to overcome that through his express disavowal of obedience to Rome. I don't think anyone today is worried about a Vatican takeover; I think the issue for a Catholic candidate is whether he will expressly disavow allegience to a core of positions strongly associated with the Church, particularly abortion. For a Democratic candidate, such a disavowal is essential. The threat from "Rome" is not evangelization, or foreign subversion, but where it stands in our culture wars, which wasn't reaqlly the issue in 1960.

4. The Political question: This leads me to what I regard as a personal problem for me, and many other Catholics like me. As Peter Steinfels reminded us, we are a people divided. Many Catholics identify most strongly with traditionalist versions of other faiths, particularly evangelicals and Orthodox Jews, on a host of issues, particularly (though not exclusively) those relating to abortion, sexuality and the family. Many other Catholics share some of the same convictions as the traditionalists, but have a host of other concerns that traditionalists do not share, or do not share in the same way or to the same extent. Many of us in that second category tend to use Cardinal Bernadin's image of the seamless garment of life as an organizing principle, and link our opposition to abortion to opposition to capital punishment, commitment to peace, radical concern with poverty, and concern for the dignity of women and minorities. Naturally, this linkage drives many traditionalists crazy, because they feel that it devalues the particular horror of abortion. An argument for another time. My point here is that we seamless garment types have no political home. The Democrats have thrown us out of the party because of our pro-life views (vide Gov. Casey, a classic pro-life liberal). On the other hands, the Republicans are usually wrong about everything else we care about as Catholics. So, where do we go? The tragedy of the Catholic liberals is that we are forced to choose between the lesser of two evils (or two "weevils", as Captain Aubrey would say). Perhaps we should start a "Seamless Garment" third party.