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.

Wednesday, March 9, 2005

My Critique of the Court's Death Penalty Case

By Rick Garnett

Given my respect and affection for Michael Perry, I certainly regret our disagreement about the Court's recent decision invalidating the death penalty for juveniles.  I referred to that decision -- the outcome of which, Michael and I agree, accords with morality and prudence -- as exhibiting "raw, unprincipled, intellectually flabby, anti-democratic judicial posturing."  I am sure that I will learn from, and be challenged by, Michael's explication of his disagreement with me, and I look forward to continuing the conversation.  For now, though, I will stand by my judgment, and also by the strong language I used to express it.  I hope it goes without saying, though, that this language -- while appropriate, in my view, to Justice Kennedy's opinion -- is not directed at, and would not be appropriate or charitable if it were directed at, colleagues, friends, and others who have reached, in good faith but and by a more promising route, Justice Kennedy's conclusion.

Rick   

The "Common Ground" Gathering; the Court's Recent Death Penalty Decision

By Michael Perry

I have nothing to add to Mark's posting below (March 7) about this past weekend's gathering in DC, except to highlight something Mark said in which I strongly concur and which merits emphasis:

    "[One often hears, frequently] from the right, ... that the [Consistent Ethic of Life] is philosophically and theologically incoherent because abortion involves a fundamental evil, a primordial affront to life, while the other values all involve prudential decisions about which people can disagree reasonably, i.e. the non-equivalence argument. We spent some time talking about this (tho not enough). I think part of the response is that there are at least some prudential issues to be considered by both citizens and lawmakers as to how the moral evil of abortion is to be handled as a matter of law in a pluralistic democracy, and that the questions of just war, capital punishment, amelioration of poverty involve the principle of life in such a way that not all disagreements can be dismissed as reasonable prudential disagreements. So there is more equivalence than is assumed by critics on the right. Furthermore, the argument that all of these issues are not 'equivalent' in importance, even if true, does not mean that they are not linked by the principle of life in a way that requires a consistent approach to them all."

    In his posting below (March 8) on the idea of a Seamless Garment Party, Rick asserts that the Supreme Court's recent death penalty decision was "raw, unprincipled, intellectually flabby, anti-democratic judicial posturing".  I have enormous respect for Rick--I wish he were my colleague--but I strongly disagree with his judgment (and with the language with which he makes it).   And, eventually, in something I plan to write, I'll explain why I disagree with Rick's judgment.  But for now I just wanted to register here my own judgment that the Court reached the right--the constitutionally right--result.   Of course, for a constitutional scholar to say this is rarely for him or her to say that the Court's opinion  was ideal.

mp

Universities and Religious Missions

By Susan Stabile

The March 10 issue of the New York Review of Books has an interesting article entitled, Colleges: An Endangered Species.  The article describes the history of American higher education in three phases, the current third phase of which is described as one in which colleges have "became essentially indistinguishable from one another (except in degrees of wealth and prestige), by turning into miniature liberal states themselves—prescribing nothing and allowing virtually everything."  The author in a footnote observes as an important exception to this generalization institutions that retain a strong religious affiliation. The footnote cites none other than our own Mark Sargent's 2001 Toledo Law Review piece on the role of the dean in an inclusive Catholic law school, "for a thoughtful account of how a university, in this case a law school at a Catholic university, can retain a sense of religious mission while being open to students of any, or no, faith."

The article can be viewed here.

Tuesday, March 8, 2005

Important Church-State Decision in Notre Dame case

By Rick Garnett

A few months ago, I blogged (here and here) about a case, brought by the American Jewish Congress, challenging the participation by Notre Dame's Alliance for Catholic Education volunteers in the federal Americorps program.  A federal trial court had sustained the challenge, ruling that "the government funding [i.e., the Americorps funds made available to ACE participants] . . . results in impermissible government indoctrination." (I should disclose that I participated in several discussions with lawyers defending the ACE program in this lawsuit.)

The United States Court of Appeals for the District of Columbia has just reversed this ruling, without dissent, and concluded that the Establishment Clause permits ACE volunteers to participate in (and to receive some funding through) Americorps.  (If any law students out there are looking for note topics . . . ).

Rick

Life as a Medical Complication

By Rob Vischer

What happens when a state-regulated medical procedure results in a complication called "living?"

Rob

Some Thoughts on the "Seamless Garment" and "Consistent Ethic"

By Rick Garnett

Thanks very much to Mark and Rob for their recent posts on the possibilities for a "Seamless Garment Party," on the "Consistent Ethic of Life," on the "Future of Pro-Life Progressivism", etc.  Just to continue, and perhaps to stir up, the conversation, here are some thoughts of mine:

First, Rob raises the "tough question", "[g]iven the obvious need, why doesn't anyone start a Seamless Garment Party?"  I wonder though, if the need for such a Party is really so obvious -- at least, to folks other than MOJ's readers and bloggers?  To be clear, I would welcome (though, as I've said before, I expect that I would not be able to join) such a party.  As I wrote, a few months ago:

[I]t is simply not clear that an authentically Catholic, social-justice program -- one that is animated by a commitment to principles of solidarity and subsidiarity -- must include counter-productive, market-distorting, and statist social-welfare policies. (Of course, this is certainly not to say -- anticipating objections -- that such a program may be robotically efficiency-based or ruthlessly individualistic, or that it could neglect social-welfare obligations. It is simply to keep in view the fact that a growing, vibrant, entrepreneurial, and largely free economy is better for rich and poor alike).

What is more . . . it strikes me that the problems with today's Democratic Party go far deeper than "life issues." That Party's orthodoxy with respect to school choice, religious freedom, the nature and scope of state power, and the function and integrity of mediating associations are -- in my judgment -- quite at odds with the "human flourishing" that Mark hopes his new Party would promote.

Of course, as some friends pointed out to me after I wrote this, I should not assume that the SGP would adopt the position of the Democrats with respect to these issues.

In any event, my own sense of the political landscape leads me to conclude (with regret) that there probably are not enough pro-life "progressives" to sustain (and, in particular, to finance) the SGP effort.  After all, the Democrats did not lose the (heavily Catholic) "Reagan Democrats" on abortion alone, but on a whole cluster of cultural, social, moral, and military issues.  I am not confident that these citizens would move again to a Party constructed along the lines that (I imagine) Mark envisions.  Also, my impression is that most of those with money, power, and organizational heft (e.g., Emily's List, the Labor movement, the teachers' unions, the contemporary civil-rights leadership) who might warm to the SGP's economic, environmental, and security positions would be entirely turned off by a serious effort to implement the Consistent Ethic of Life (in, say, the stem-cell research, abortion, euthanasia, and religious freedom contexts).

Rob also asks two other (excellent) questions:  "Could an SGP platform be constructed in a way that would keep holders of the many divergent perspectives on Catholic social teaching together?  If not, would the SGP still serve a purpose if it was built on only a few core, non-negotiable issues?"  I guess it all depends on how specific -- in terms of translating principle into policy -- the platform tried to be.  If the platform proclaimed that "economic policy ought to be constructed in a manner consistent with a commitment to the welfare and dignity of the poor," that would be one thing; if it pronounced, "given our commitment to Seamless Garment values, private savings accounts and exploratory drilling in ANWR must be opposed," that would, in my view, be another.  If the "core, non-negotiable issues" were, say, "abolition of the federal death penalty, passage of anti-abortion legislation to the extent feasible, and no funding for research involving the destruction of human embryos," that might unite people who respectfully disagree -- as, say, Rob and I might -- about tax policy or private-property rights.  But would this list be long enough to attract pro-life progressives away from the Democrats?

Mark writes, in response to the "non-equivalence argument", that "there are at least some prudential issues to be considered by both citizens and lawmakers as to how the moral evil of abortion is to be handled as a matter of law in a pluralistic democracy, and that the questions of just war, capital punishment, amelioration of poverty involve the principle of life in such a way that not all disagreements can be dismissed as reasonable prudential disagreements."  He's right, I think.  That said, it seems to me that the realm of prudent and reasonable intra-Seamless-Garment disagreement is (or, ought to be) "smaller" when it comes to abortion -- even conceding Mark's point about the reality of pluralism -- than when it comes to "questions of just war" and "amelioration of poverty", or, more generally, when it comes to markets, taxes, incentives, transfer payments, deficits, trade, etc.  If I'm right about this, I suppose it complicates the prospects for a Seamless Garment Party.

Finally, I would love to hear more -- from those who attended the Common Ground conference, or from those who will attend the St. Thomas conference on pro-life progressivism -- in response to these questions:  How much support, among progressives, would there be for (i) robust legal protections for religious freedom and for the independence of religious institutions and associations, and (ii) meaningful, parental-choice based and religion-inclusive education reform, both of which would, I would think, need to be key parts of the platform of an authentically Catholic, CEL political movement?  And, what would be the SGP's stance regarding the "rule of law" and the role of the judiciary in a constitutional system?  This latter question seems timely in light of the Supreme Court's recent ruling, striking down the death penalty for juveniles, in the Roper case.  The "Culture of Life v. Culture of Death" and "Consistent Ethic of Life" camps agree, I imagine, that the policy outcome of this decision is to be welcomed.  (I welcome it).  But what do we think of how it came about (i.e., raw, unprincipled, intellectually flabby, anti-democratic judicial posturing)?

Thanks again to Rob and Mark for their posts.

Rick

Monday, March 7, 2005

How Could I Forget?

By Rick Garnett

How could I forget to mention that our own Michael Perry was among the law profs at the Common Ground conference I blogged about below? Mike made his usual very valuable contributions to the discussion. I'll let him fill you in on the insights he brought to bear.

--Mark

Funny You Should Mention That! (i.e. the SGP)

By Rick Garnett

It was interesting to see Rick's last post because the SGP has been on my mind again. As the person who kicked off the "thought experiment" on that idea, I guess I should report on its strange persistence outside the four corners of MOJ. Soon after our blog discussion I started to get random emails from folks wanting to sign up, to which I had the same embarassed response as Rob and any other academic stunned at actually being taken seriously. More important. the SGP (or something like it) was a topic of conversation at the 9th Annual Cardinal Bernardin Conference of the Common Ground Initiative this past weekend in DC (the Holiday Inn in Arlington, actually) on the topic of "Religion, Law and Politics." I was joined at this conference by co-blogistas Greg Kalscheur, Amy Uelmen and Vince Rougeau, and by Catholic law profs Cathy Kaveny and Robert Rodes of the Golden Dome, David Gregory of St John's, Dean John Garvey of BC and the great Judge John Noonan. Also present were the Three Wise Men of CST, David Hollenbach, Brian Hehir and David Langan, as well as a bunch of other smart folks. Unfortunately missing from this attempt to find "common ground" between left and right were most representatives of the right. Among the few who was there was my new colleague Jeanne Heffernan, a Villanova political philosopher with an affiliate appointment in our law school whom I would describe as somewhat right of center (but still eminently reasonable.) That left the conversation a little one-sided and non-passionate, but it was still very interesting, and I learned a lot.

            We spent most of our time agonizing about the issues that fell out of the last election, with which most of our blog group and our readers are already painfully aware, and we focused on the problems as ones of both discipleship and citizenship. The conversation turned, however, to the question of why the notion of the consistent ethic of life has not had the kind of cultural and political resonance that the culture of death/culture of life dichotomy has had. Without that kind of resonance, of course, the SGP may be an interesting thought experiment, but as the foundation for a mass democratic movement it is DOA.

               One answer, of course, has been that of realpolitik. As David Carr of the USCCB pointed out at our conference, after Cardinal Bernardin gave his SG speech, his friends in the peace movement complained that the linkage with abortion would kill the church's influence with the lefties in the peace movement. His friends in the prolife movement pleaded with him not to link abortion with all that peacenik stuff and opposition to capital punishment! In short, the cultural/political forces that were really important and influential could not stomach the linkage of values in the CE of L. So it is no mystery that the concept has not had cultural/political force.

              Another answer, of course, and one frequently heard from the right, is that the CE of L is philosophically and theologically incoherent because abortion involves a fundamental evil, a primordial affront to life, while the other values all involve prudential decisions about which people can disagree reasonably, i.e. the non-equivalence argument. We spent some time talking about this (tho not enough). I think part of the response is that there are at least some prudential issues to be considered by both citizens and lawmakers as to how the moral evil of abortion is to be handled as a matter of law in a pluralistic democracy, and that the questions of just war, capital punishment, amelioration of poverty involve the principle of life in such a way that not all disagreements can be dismissed as reasonable prudential disagreements. So there is more equivalence than is assumed by critics on the right. Furthermore, the argument that all of these issues are not "equivalent" in importance, even if true, does not mean that they are not linked by the principle of life in a way that requires a consistent approach to them all.

              I think the real answer, however, is that the culture of death/culture of life dichotomy, which is encapsulated in the incandescent abortion  and now same-sex marriage issues, addresses a profound complex of fears about human sexuality, the status of women, the future of the family, and social disorder and collapse that is widespread. It is a characteristically American response to another profoundly American cultural phenomenon: radical value skepticism, moral relativism and an insistence on the individual's radical autonomy. Of course, those of us who value the CE of L are equally concerned about those things, which lead us to similar opposition to abortion on demand, the fetishism of choice, exploitative, trivialized sexuality and so on. But it also leads us to concerns about race, poverty, war etc. that the first group I described not only may not share, but actually may find threatening. In other words, we link on abortion, but not much else, and they have the political juice. We don't. Why? Someone else needs to tell that long story.

                   Part of the problem with turning to Catholic imagery, the institutional Church, or to Catholics for leadership and influence is that we are ourselves divided between the Culture of Death crowd and the Consistent Ethic of Life crowd. I am sure that the responses to this post will show how real that division is, even if the post argues that there should be no such division.  If we can't get our act together, how can we lead? But I learned this weekend that there may be hope: apparently a "Democrats for Life," has formed, and a group of students in Boston has apparently started an email buzz organizing like-minded folks. Not that any of this actually constitutes a mass democratic movement, but it is interesting. But assuming that there is some force behind the CE of L as an organizing principle -- or what our friends at St Tommy are calling "Pro-life Progressivism"-- what should the goal(s) be? I'll be talking about that Friday in MN, but will try to blog some ideas before I do,

--Mark

Seamless Garment Party: the Future is Now (?)

By Rob Vischer

Later this week the University of St. Thomas School of Law in Minneapolis will host an important conference devoted to exploring the future of pro-life progressivism.  I cannot attend, but I'm hoping that readers or co-bloggers who attend will report on the proceedings, as this conference seems as closely related to the ongoing conversations at MoJ as any academic conference in recent memory.

In particular, I hope that participants will at least attempt to formulate some answers to a tough question I've been asked.  Shortly after the election, I was speaking with a friend in the Midwest who was lamenting the choice she faced when voting for President.  I relayed our talk of a "Seamless Garment Party," and her mood changed immediately.  Not only did she offer on the spot to make a sizeable financial contribution to such an endeavor, she identified several neighboring families who would back the party with maximum effort.  She then asked, "So when is this party going to start up?"  I hemmed and hawed, of course, muttering about how academics like to talk about things a lot, hoping to inspire the doers who pick up the baton later.  She was not satisfied, and asked, "Given the obvious need, why doesn't anyone start a Seamless Garment Party?"  I did not have a good answer.

The Democrats have made some well-publicized statements about expanding their pro-choice tent, and President Bush makes friendly gestures on certain social justice issues.  But would both major parties take "seamless garment" claims more seriously if voters could register their discontent on election day?  Could an SGP platform be constructed in a way that would keep holders of the many divergent perspectives on Catholic social teaching together?  If not, would the SGP still serve a purpose if it was built on only a few core, non-negotiable issues?

Finally, to the extent we decide that the SGP is not a viable or prudent path, does that signal our acceptance of the current two-party split-the-baby division of the Church's web of social teaching?  Or does it signal our belief that the teaching is not well-suited to real-world politics?  Or is it simply laziness, timidity, or something else?

Rob   

UPDATE: There's some interesting and provocative reader comments on this post over at Open Book.

Must Democracy Rest on Faith

By Rick Garnett

Here is a story, from the Christian Science Monitor, "Must Democracy Rest on Faith?", about Pope John Paul II's new book, "Memory and Identity: Conversations Between Millenniums," in which (according to the story) "the pope attacks Western democratic society for being so obsessed with freedom that it has lost its sense of good and evil."

Rick

Previous Articles More Articles

Recent Posts

Categories

Monthly Archive