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.

Tuesday, June 7, 2005

Virtual worlds and human flourishing

By Rick Garnett

Another fascinating post at "Prawfsblawg":  Christine Hurt discusses a panel at the recent Law & Society conference on "virtual worlds."

I was fairly fascinated at how the panelists and audience spoke of virtual worlds.  What I saw as a product (the game) created and owned by a developer for use by patrons (gamers) others saw as a context for self-actualization, or what I would call "human flourishing."  Naturally then, if you believe that a virtual world is an arena for human flourishing, then you would want the humans involved (gamers) to have some rights and remedies so that their expectations would not be frustrated.  The gamers would need some property rights maybe, or free speech rights.  Panelists were loath to think of virtual worlds as merely regulated by contractual "terms of service."  Virtual worlds are a public space, more like a public university than a Chuck E Cheese or a bookstore.

OK, what is so fascinating about this to me?  Because I teach corporate law.  And for years (and years and years) progressive corporate law scholars have attempted to create a paradigm in which the corporation is seen as an arena for human flourishing of the participants in the corporation -- definitely for the employees, but maybe also for the customers, vendors, and the wider community.  Let's just say that this is not the prevailing view of the corporate form.  But if it were, then employees and other stakeholders would have a broader set of rights than they currently do.  Instead, other approaches prevail, such as the construct of the corporation as a "nexus of contracts," the very approach that the virtual world scholars seem to reject.

So, would the virtual world scholars be willing to adopt a broader view of corporate law than mere profit maximization?  Surely a bricks and mortar organization with human employees who rely on the corporation for their livelihood is as good a candidate for an arena of human flourishing than a series of computer code that is used by gamers unconnected by physical space or real names.

We invoke "human flourishing" a lot on this blog, and in the CST context more generally.  What do people think of Christine's post?  In particular, what do our corporate-law experts think?

Rick

Wenger on Ayres on Religious "Discrimination"

By Rick Garnett

Kaimi Wenger, over at the always-interesting "Prawfsblawg," has this post, responding to Ian Ayres's own discussion of the steps he has taken in response to his church's (the Episcopal Church, it appears) stand on same-sex marriage.  In Ayres's post, "Acknowledge, Apologize, Act," he writes:

I'm Episcopalian (and have been teaching Sunday school for the last three years). The Episcopalian Church still discriminates against same sex couples. I can religiously marry the woman I love, but my sister who is gay cannot religiously marry the woman that she loves. . . .

What should I do in response to this discrimination? . . .

This is a point where the moral duty to warn kicks in. My parish was prohibited from marrying same-sex couples, but neither the bishop nor the cannon law prohibit us from warning potential members that the Episcopalian church treats same-sex couples differently than different sex couples. We might even require our current members to sign statements acknowledging that they are choosing to associate with an organization that discriminates on the basis of sexual orientation with regard to marriage.

Isn't there a moral duty to warn people about things that they might find repugnant -- especially if you find it repugnant? Reasonable people can make different choices about whether it is appropriate to work for change inside or outside a discriminatory organization. But if you're working for change inside, you should at least let a potential member know that he or she is making this kind of choice. . . .

It's hard to acknowledge that you associate with a discriminatory organization. Here's a personal exercise that you can complete right now in the privacy of your home or cubicle. Do you attend a church that discriminates on the basis of sexual orientation on whom it will marry? Can you bring yourself to literally sign your names to these words: "I acknowledge that I am choosing to associate with a church that discriminates on the basis of sexual orientation"?

Kaimi Wenger responds:

I can understand Ayres's impulse.  However, I'm uncomfortable with the way that Ayres's analysis seems to treat the relationship with a church like any other relationship with an organization.

I'm not convinced that it makes sense to treat religious organizations the same as other entities, such as employers, retailers, or government agencies.  And I think that it's quite disingenuous for liberal academics to act as if there is no difference between religious and other organizations.  (Ayres' post falls somewhat into this category, and I've seen the point argued more strongly elsewhere).

The fact is that for many Americans, religious organizations are not simply another type of private actor or organization.  Rather, they are a means of interacting with a divine being.  They are a link to God. 

This can lead to some important ways in which discrimination by religious organizations is viewed differently by members of those organizations than discrimination by other entities. . . .

Of course, there may still be good reasons to seek social changes from within religious organizations.  But any such efforts must start from a point that recognizes, rather than avoids, the distinctive nature of religious organizations.

Thoughts?

Rick

Tierney on the Florida voucher case

By Rick Garnett

Here's a good op-ed from today's New York Times, by John Tierney, "A Chance to Escape":

Students like Adrian Bushell have always posed an awkward political problem for opponents of school tuition vouchers. Like most students receiving vouchers in Florida, he is black and lives in a poor neighborhood with bad public schools. How can you claim the moral high ground when you're denying him a chance to escape to a better private school?

The traditional answer has been that his classmates would be left behind in a public school made worse by the loss of resources and students. But this argument is looking more dubious than ever, and you won't be hearing much of it when lawyers ask the Florida Supreme Court today to end Florida's voucher program.

Rick

Subsidiarity in the Real World

By Rob Vischer

Thanks to Rick for his response and to Tom for his questions.  Rick is correct that we are largely in agreement -- my skepticism toward pinning the subsidiarity inquiry on the wisdom of the centralized policy stems from my conviction that we can't rely on a straightforward balancing approach to determine whether the higher or lower body is the better locus of power in a given context; rather, we should presume that the lower body should have authority absent a showing to the contrary.  This does not mean that such showings cannot be made.  (Indeed, I've previously criticized the Bush Administration for appearing -- pre-9/11 -- to equate subsidiarity with a broad program of devolution.)

Tom asks whether spillover effects can justify higher-level action.  I would say it depends on the injury threatened by the spillover.  Environmental stewardship is a fairly strong justification for government action under Catholic Social Thought, and the spillover effects of air pollution would (in my view) warrant federal regulation.  (Even absent spillover, a state's failure to address its own air pollution may warrant intervention from the higher body.)  But the mere fact that the autonomy of lower bodies impacts other lower bodies is not enough to curtail that autonomy.  (An association's right to exclude, for example, is meaningless unless it impacts the freedom of other groups and individuals.)  As for the marijuana example, I would want evidence of the spillover threat posed by this particular exemption, as well as a persuasive argument that the resulting injury amounts to a significant impairment of human flourishing, properly understood.

Tom also asks whether uniformity of regulation justifies federal intervention.  Here I'm more skeptical, for efficiency concerns could eviscerate subsidiarity in a variety of contexts.  (A single state-mandated educational program for all children would be wonderfully efficient.)  If a state's citizens choose to embrace uniformity in an effort to attract business to the state, for example, I see nothing wrong with that.  But if uniformity is imposed by the higher body, that's a problem unless there is an independent showing that intervention is warranted.  In this regard, the federal government's decision to condition highway funds on states' willingness to raise the drinking age to 21 may be justified given the alcohol-related death rates of teenagers.  In most family law areas, by contrast, I believe that the current trend toward uniformity creates tension with subsidiarity, as these are issues where localities' norms and ideals should be reflected in their legal regimes, regardless of efficiency.  (Gay marriage is the leading example where a state-by-state approach is crucial, in my view.)

To be clear, these thoughts are tentative attempts to put real-world flesh on the often amorphous framework of subsidiarity.  I welcome others' views.

Rob

Still more on Raich and subsidiarity

By Rick Garnett

I appreciate Rob's response to my own to his.  (Thanks also to Tom Berg).  Rob writes:

I resist the notion that subsidiarity allows the higher collective to usurp lower bodies whenever the collectivizing impulse is in service of a policy deemed "wise." Rather, it would seem that a critic of lower bodies' efforts to address a problem should show that the effort is misguided or inadequate in some significant sense -- i.e., that human flourishing, properly understood, requires the higher body to step in. In the context of this case, then, we can't just say that state-by-state opt outs make a national drug policy more difficult; don't we need to identify and articulate why a broader availability of state opt outs in this area would hinder human flourishing in particular and significant ways?

I'm not sure, actually, that Rob and I disagree.  First, let's put aside the (very important) question of Congress's Article I power to regulate the possession of locally produced marijuana.  Second, the "wisdom" of a national ban on possession of marijuana remains relevant, normatively speaking, because, as I see it, every prohibition, and regulation should be evaluated for its "wisdom" (by legislators and voters, if not judges); otherwise, such a prohibition or regulation is a useless and expensive imposition of force.  Third, as Rob says, the conclusion that an exceptionless ban on marijuana possession -- assuming, again, that it is constitutionally permissible -- is "wise" does not end the subsidiarity inquiry into whether it should nonetheless give way to a "lower" body's contrary or conflicting policy (such as a medical-marijuana opt-out).  But, and finally, it does seem to me that somone committed to subsidiarity to conclude that (a) the use of marijuana is, generally speaking, contrary to the common good and bad for persons; (b) a ban on that use is therefore wise and normatively attractive; (c) a ban on marijuana, to be effective at achieving and promoting its ends, must be comprehensive and exceptionless (otherwise it will be undermined, etc., as Justice Stevens argued); and, therefore, (d) a local contrary policy may and should be overridden, because (in Rob's words) "a broader availability of state opt outs in this area would hinder human flourishing [i.e., by undermining the flourishing-promoting policy] in particular and significant ways."

Rick

UPDATE:  Here's another post of mine on the matter, a contribution to a big discussion of Raich going on at SCOTUSblog.

Justifications for Federal Regulation?

By Thomas Berg

Rob:  What do principles of subsidiarity say about these arguments for higher-level regulation?

1.  Where activity in one state has spillover effects into another.   Does this show that local units can't handle the problem and therefore higher-level action is appropriate?  Air pollution blowing from one state to another is the obvious case.  But one might also posit that states that prohibit marijuana use will have their policy undercut by marijuana grown in California that seeps out of the CA medical-use market into other states.  (I suppose that might only justify a federal rule against transporting marijuana across state lines, but then the enforceability of that rule arises again as a question.)

2.  Where uniformity of government regulation, as compared with multiple state regulations, helps empower other subsidiary actors -- businesses, nonprofits, etc. -- by reducing the complications they face in understanding and complying with regulation.  (Assuming that there will be regulation, businesses -- at least interstate ones -- often prefer it to be federal for these reasons.)

Tom B.

More on Subsidiarity and Medical Marijuana

By Rob Vischer

Rick's post on the medical marijuana case posits that one could invoke subsidiarity in defense of the ruling if one thinks that a national drug policy intolerant of state opt-outs is "wise." I know Rick was playing Devil's Advocate in framing this argument, but I want to clarify what a defender of the ruling would need to show to align the outcome with subsidiarity. I resist the notion that subsidiarity allows the higher collective to usurp lower bodies whenever the collectivizing impulse is in service of a policy deemed "wise." Rather, it would seem that a critic of lower bodies' efforts to address a problem should show that the effort is misguided or inadequate in some significant sense -- i.e., that human flourishing, properly understood, requires the higher body to step in. In the context of this case, then, we can't just say that state-by-state opt outs make a national drug policy more difficult; don't we need to identify and articulate why a broader availability of state opt outs in this area would hinder human flourishing in particular and significant ways?

To take an obvious example, suppose that a state legislature decides that children would benefit if they were given at least one nutritious and balanced meal each day, and that since many children do not receive one such meal, the state will require all children to eat dinner at a government food service agency in their community. One may conclude that the benefits to children's physical health would be a positive development, but subsidiarity would never stand for such a measure -- the lower unit (family) must be protected from the higher unit (the state). California, of course, does not have the same standing as the family in Catholic Social Thought, but doesn't subsidiarity still put a thumb on the scale in California's favor, at least when aligned against the federal government? If so, don't we need to show something more than our judgment that the centralized approach promotes a wise policy?

My fear is that if the subsidiarity inquiry is allowed to turn on the purported wisdom of empowering the higher body, the doctrine will live up to its critics' allegations that it serves as an infinitely malleable rhetorical device.

Rob

More on Moralization, Sacrifice, War, and Abortion

By Thomas Berg

MOJ reader Matt Festa offers thoughtful comments on my earlier post arguing that, contra Joseph Bottum in First Things, the war against radical Islamic terrorism is unlikely to "help summon the [national] will to halt" abortion (in Bottum's words).  I argued that the Bush administration had chosen to pursue the war on terror by means that avoid calling for any sacrifices from the vast majority of Americans, and therefore it was questionable whether the war on terror would prepare Americans for the kind of sacrifices required to reduce abortion through any humane sort of policy (i.e. one that does not simply criminalize abortion but also encourages alternatives).

Matt points out first that Bottum's article primarily concerned the increasing "moralization" and "sense of national purpose" of conservatism, not of America as a whole:  "As I see it, Bottum's claim is not that America itself has been purged of its 'happy nihilism' (as Allan Bloom would say) but that conservatism has."  Point taken -- but Bottum does make that claim at the end that the war on terror could "help summon the national will" to fight abortion.  In addition, I still think that we ought to gauge the depth of a moral principle such as "fight terror and promote Middle East democracy" in part by how much people are willing to sacrifice for it.  And with no military draft, little or no energy conservation, and no tax increases to pay for war expenditures, I don't see much sacrifice by the average American conservative, any more than by the average American.

Matt further develops Bottum's thesis by arguing that "American conservatism is increasingly accepting the principle that moral truth exists and should be followed."  As evidence for this, he offers the fact that

1) Resistance to abortion is overwhelmingly right wing. 
2) Any resistance there is to cloning [and] stem cell research, and [any] general defenses of human dignity [are] coming from the right . . . . [and]

3) Moral arguments in foreign policy have been co-opted by the right.

[And] while the right has moved to a more moralistic stance, the left has drifted closer and closer to moral relativism. Isn't it troubling that most arguments justified by moral relativism emanate from the left? Abortion, libertine attitudes towards sex, marriage, and stem-cell research come increasingly from the left these days. Why is it that post 9/11 the Republican party has gravitated to the "moral truth" end of the spectrum while the Democratic Party has drifted towards obscure moral relativism?

It seems to me that this oversimplifies things.  I have heard plenty of moral arguments from the left recently concerning foreign policy.  One is that there should be severe moral limits on war as an instrument of foreign policy.  Indeed, Pope Benedict made such statements in the context of the Iraq war here and here when he was a cardinal, and no one would accuse him of moral relativism.  This may be a misguided moral position -- it has been criticized as being unrealistic and lacking in prudence -- but those are very different (even opposite) criticisms from saying it rests on moral relavitism.  The second common moral argument on the left is that torture is never justified and the dignity and physical integrity of detainees must be strictly and fully respected even at the cost of foregoing information they might provide.  It's the political right -- make that some people on the right -- who argue in response that one has to be realistic and cut a few corners in order to prevent greater harms to innocent Americans in the future.  Again, the question here is not who's right or wrong morally.  It's that both sides make moral arguments based on the moral principles that they judge to be most central.  (I won't comment on the additional suggestion that the universe of issues involving "moral truth" might be limited to "abortion, sex, marriage, and stem-cell research.")

Matt also comments:

Finally, as to your correct observation that Bush has been unable to translate [the conservative post 9/11 sense of purpose] into a broader American consensus, can at least part of the reason be due to the  circumstances he was dealt? For instance, Bush had to spend A LOT of political capital on Iraq. In fact, had he not declared war on Iraq, he probably would have coasted in the 2004 election. Further, while I agree with you (partly) on the economic situation we were in, Bush did inherent a recession. Had he raised taxes during his first term, he would have made the recession worse. I am not convinced that deepening a recession would build support for a re-moralization of the culture. On the contrary, I think it would have provided fodder for his enemies.

These too are fair considerations.  But even assuming it's true that raising any taxes would have made the recession worse, we should note that President Bush didn't just refuse to raise taxes for the moment, as a sort of countercyclical/Keynesian policy.  He pressed to make the upper-income tax cuts permanent even in the face of the ballooning deficit.

Tom B.

Monday, June 6, 2005

More on Subsidiarity and Congressional Power

By Thomas Berg

A couple of thoughts to follow Rick's and Rob's comments on subsidiarity and the medical marijuana decision:

1.  When I teach federalism to Constitutional Law students, I also have them read materials on subsidiarity (including excerpts from Rob's terrific "Subsidiarity as a Princple of Governance," posted over on the right).  But I emphasize, like Rick did in his post, that the contours of congressional power and the principles of subsidiarity are two different things.  Whether a given action comports with subsidiarity turns in significant part on the policy wisdom or necessity of the action -- in particular, whether the issue requires a higher-level as opposed to local solution.  By contrast, the constitutional question -- as Raich reaffirms -- is "not whether it is wise to enforce the statute in these circumstances; rather, it is whether Congress' power to regulate interstate market[s] . . . encompasses the portions of those markets that are . . . produced and consumed locally."  That's from the Raich majority opinion, page 6.  Power, not wisdom, is the constitutional question; Congress can have power even if it overreaches or acts unwisely.  The courts' general reluctance, or impotence, to judge the wisdom of statutes may also make them reluctant or impotent to do much with notions of subsidiarity.

2.  Well, let's qualify that.  Actually there might be a significant overlap between subsidiarity and the kind of commerce-power inquiry involved in a case like Raich, where the issue is -- or can be seen as -- whether local activity (home growing medical marijuana) will have effects outside the locality (effects on the supply and price of illicit marijuana in national markets).  When there is such an effect, then subsidiarity probably will allow the higher-level regulation -- on the ground that localities alone can't address the issue because each will be frustrated by the effects coming in from other localities.  And constitutional doctrine will also allow federal regulation, under the theory of "aggregating local activities" bolstered by the power of Congress to make laws "necessary and proper" (Art. I, section 8, cl. 18) to the execution of its other powers such as regulating interstate commerce.  So maybe subsidiarity and constitutional federalism do parallel each other, at least when the issue colorably involves "commerce" and thus Congress's commerce-regulating power.

Except that there remains a question of how confident we have to be about such a cross-locality (i.e. interstate) effect in order to justify higher-level (congressional) regulation.  Here's what Raich says about that (majotity opinion, page 19):

In assessing the scope of Congress's authority under the Commerce Clause, we stress that the task before us is a modest one. We need not determine whether respondents' activities, taken in the aggregate, substantially affect interstate commerce in fact, but only whether a rational basis exists for so concluding.

In other words, judicial deference and "modest[y]" apply not only to the policy wisdom of the statute in general, but to the question whether local activities (aggregated as a class if need be) will have an interstate effect (i.e. on interstate commerce).  Can such a deferential approach to that question be squared with subsidiarity?  I would have thought that before local regulation is superseded, subsidiarity would require some level of proof that local activities will have interstate effects -- not just that it be "rational" to think that such effects will occur.

The precise standard may not matter in Raich, because both the majority and Justice Scalia (concurring) argue that it's not just plausible, but very likely, that home-grown medical marijuana, as a "fungible" commodity, will seep into the national, interstate market.  On the other hand, Justices O'Connor and Thomas, in dissent, argue that these effects hadn't been proven:  Thomas, for example, says that there's been no showing "that California’s controls [on non-medical uses or disposition of medically prescribed marijuana] are ineffective."  So the difference between "a rational basis for expecting an interstate effect" and "proof of a likely interstate effect" may be important to the case -- and to other Commerce Power cases as well.

Tom B.

Religious Freedom: What's at Stake (and what's not)

By Rick Garnett

Here is a short, informative essay by law professor and Religion Clause expert Carl Esbeck, "Church-State Relations in America:  What's at Stake, and What's Not":

It seems religious freedom has become an object of perpetual litigation. As a consequence, the struggle over church-state relations is vulnerable to a high level of crisis-mongering-especially in those ubiquitous fund-raising appeals. It is difficult to sort out real threats from mere shadows, and even harder to know where best to invest one's time and other resources for the long term. Although few people have been as free to practice their religion as present-day Americans, there are still crucial jurisprudential matters at stake. These matters get elbowed into the background when the spotlight is thrown on hot-button issues such as eliminating "under God" from the Pledge of Allegiance or removing the Ten Commandments from a courthouse lawn.

In this article I identify those truly important issues that, in my judgment, will prove crucial to securing religious freedom well into mid century. I will close with two highly emotional issues of mere superficial importance-except that they rile the masses and cause them to reach for their checkbooks to finance the wrong battles in the culture war.

Rick

Previous Articles More Articles

Recent Posts

Categories

Monthly Archive