Monday, October 3, 2005
Villanova University is hosting a conference, "Catholic Social Teaching and Ecology," on November 9-11, 2005. Former MOJ-er Lucia Silecchia and many others are presenting. Maybe Mark can tell us more?
I should note that one of the scheduled speakers was Monika Hellwig, a renowned Catholic theologian and teacher. Professor Hellwig passed away on September 30. R.I.P. (link).
I see RIck's point that pro-lifers need to withhold judgment on Myers because her views on Roe as a constitutional decision are not clear. But what does seem clear is that Bush is at best taking a big gamble on her views of Roe (unless she's given him private assurances) when there were other candidates whose opposition to Roe's constitutional foundation was far more certain -- and who, as Todd Zywicki lucidly explains over at Volokh, would be far more likely "to provide intellectual leadership that will move the legal culture" against Roe (and other erroneous decisions) over the long run. RIck points out that any nominee who had explicitly criticized Roe would face stiff opposition (would probably get no Democratic votes). But Bush now has 55 Republican senators -- more than he's ever had -- and in the past he's taken on fights like this on issues that he truly cared about, such as the war in Iraq and upper-income tax cuts. The negative inference about the weakness of his commitment to overturning Roe may not be conclusive, but it's pretty darn strong.
Tom
Rob writes: "[M]y mother-in-law, a cradle Catholic, has long resented the church hierarchy's encouragement to vote for the "pro-life" conservative candidate, even though, in her view, "nothing ever changes" on abortion when push comes to shove. Doesn't this nomination provide conclusive evidence that her resentment is appropriate?" In my view -- and all due respect to Rob's mother-in-law! -- is "no." (What, by the way, is the evidence for the belief that "the Church hierarchy" consistently encourages peole to vote for the pro-life candidate? It seems to me that the message coming out of the USCCB, and from most chancery offices, has always been, "we're really upset about abortion, but, in the end, we prefer Democrats").
The Newsweek writer Rob quotes might well be putting it "plainly", but that does not make her correct. It is clear (to me, anyway) from her piece that it is really important to the writer that it be the case that Republicans are not really better on abortion than are Democrats. It strikes me that, in fact, the likely reason why the President nominated someone without a paper trail on abortion is not so "Bush can feign surprise when, to the chagrin of all the voters he won over on the abortion issue alone, social conservatives are ignored once again" but instead because (as the Newsweek writer knows full well) our political culture, and our media culture, are such that no one with a clear record of truth-telling about Roe can count on fair treatment in the United States Senate. But this dysfunction is hardly President Bush's (or Harriet Miers's) fault.
Now, if it turns out to be the case that the President nominated Miers without regard to, or without caring about, her "judicial philosophy" generally, or her view on Roe more specifically, or if she ends up voting in abortion cases like Justice O'Connor, then I will be angry and demoralized. It seems to me, though, that many in the pro-life camp are jumping too quickly to the conclusion that this is what the President has done.
For what it's worth, the not-exactly-squishy group, "Priests for Life", seems more optimistic about Miers. I've read that Miers has donated to, and received awards from, pro-life groups, and I know that she led efforts to change the ABA's pro-abortion-rights platform.
Rob and I agree: If it were the case that the GOP cynically appealed to pro-life voters at election time, only to ignore them later, that would be a reason for resentment. (Whether it would be a reason to vote for the party that panders enthusiastically to the abortion-rights movement, and then delivers quite effectively, is another matter). I am not ready to conclude, though, that President Bush has done that, or is doing it here.
Rick
Well, not quite. For those keeping score at home, it appears that Miers was raised as a Catholic, but did not, in her pastor's view, "totally commit her life to Jesus" until she was an adult and began attending an evangelical church in Texas, where she has now been a member for 25 years.
Rob
This Newsweek writer states it plainly:
It's no accident that White House counsel Harriet Miers, the president's choice to succeed Sandra Day O'Connor on the Supreme Court, has no judicial experience. That way, Bush can feign surprise when, to the chagrin of all the voters he won over on the abortion issue alone, social conservatives are ignored once again. Who knew?
In August 2004 during the GOP convention, I asked whether, in light of the pro-choice lineup of speakers, the pro-life commitment is "an identity-defining issue for the GOP hierarchy, or is it simply a mantra that ensures the continued party allegiance of abortion-focused evangelicals and Catholics?" I don't claim to be unique in my cynicism: my mother-in-law, a cradle Catholic, has long resented the church hierarchy's encouragement to vote for the "pro-life" conservative candidate, even though, in her view, "nothing ever changes" on abortion when push comes to shove. Doesn't this nomination provide conclusive evidence that her resentment is appropriate?
Rob
UPDATE: In response to Rick's question (above) about whether the hierarchy actually encourages Catholics to vote for "pro-life" conservative candidates, I should have noted in my initial post that my mother-in-law lived in St. Louis at the time of the 2004 election. Under Bishop Burke, the "encouragement" was plain to see.
In contrast to the philosophers and theologians at Friday's St. Thomas symposium, who were all critical of the idea of the U.S. as exceptional -- including exceptional in the sense of not needing to be constrained by international human rights law to the same degree as other nations -- several of the law professors defended, to one degree or another, the U.S. resistance to international human rights law. (Although all the symposium participants were quite good, there could have been a little more diversity of views within each panel: a theologian more to the right, and a law professor more to the left.)
Jack Goldsmith (Harvard) offered a quite convincing case, so far as I could tell, for the U.S. practices of making reservations on certain issues when it signs treaties and requiring domestic legislation in order for a treaty to be enforced. First, he argued, the U.S. is not exceptional in this regard, since England and most other liberal democracies also make reservations and/or treat treaties as non-self-executing. Second, the practice of reservations actually shows respect for international human rights law: the U.S. and other liberal democracies take those obligations seriously and won't sign on to a provision that they can't commit to enforce, while dictatorships around the world sign onto the treaties with no reservations and then ignore the obligations. Third, to require domestic legislation for enforcement of a treaty makes sense for a liberal democracy with a developed civil-rights enforcement system, because the sudden direct application of (often vague) international human rights law could affect that system in unforseen and negative ways. For all these reasons, Goldsmith argued, the focus should be on the moral substance of U.S. practices (like the death penalty or prison conditions), not on whether the U.S. signs on unreservedly to human rights treaties. I'd be interested to know if others see flaws in these arguments, which seemed pretty persuasive to me.
John Harrison (Virginia) made arguments that I -- admittedly a non-expert -- found somewhat less convincing. He used tools of federalism analysis to assess whether human rights law should be made locally (i.e. by the individual nation) or centrally (i.e. through international bodies and documents). He argued that the standard reasons for central decisionmaking -- interactions between various local acts, and the superiority of the central decisionmaking process -- don't apply in the case of human rights law, at least not with respect to U.S. behavior. As to "interaction" arguments, there's no particular need for a coordinated uniform standard (as there is with e.g. which side of the road to drive on); there are no material externalities from human rights problems in the U.S. (e.g. we don't create lots of refugees); and the U.S. doesn't participate in a race to the bottom (e.g. allowing economic abuses to attract investment). As to "process" arguments, the international human rights process is less democratic than the U.S. lawmaking process, and it is not improved just because it adds lots of non-American perspectives (many of those are bad, e.g. the perspectives of dictatorships).
Although Professor Harrison raised several good points, I had two negative reactions to his arguments. First, some of his claims were debatable, as he acknowledged: for example, the U.S. (or individual states) might in fact relax some norms (such as workers' protections) in order to attract investment. Second and more fundamentally, I don't believe that we typically analyze federalism issues with respect to particular states -- do there need to be federal protections for workers in Minnesota? In Texas? -- and then adopt a federal standard for one state while letting another act on its own. Rather, we ask whether the particular issue(s) should be left to states in general. There are some exceptions, to be sure: preclearance requirements for some states under the Voting Rights Act, stricter air-quality standards for some cities. But in general, we say that if a matter should be left to the states, it should be left to all the states (subject, perhaps, to some minimum federal requirements). I assume that part of the reason for this is the intuitive sense that treating states unequally will create resentment and make enforcement of norms more difficult. If this is true for U.S. federal-state matters, where there is a central government with relatively effective means for enforcing its will, I'd guess it's even more true for norms across nations, where the enforcement mechanism is weaker and compliance therefore rests even more on the intuitive fairness of the system. There are many international human rights laws that we want Iran, China, Egypt, and other nations to follow; but our moral standing to press such arguments is greatly weakened if we disregard such norms whenever we have a problem with them. Even if we set forth reasons why we're different from those nations and don't need to be subject to international norms, those reasons will inevitably be seen as self-serving (which is a major cautionary point about American exceptionalism, one that that Professor Ryn raised in his talk earlier in the day).
I unfortunately missed the comments by Philip Bobbitt (Texas). But MOJ friend Paolo Carozza (Notre Dame) gave a very lucid talk on the various reasons why it is difficult to get international human rights norms ratified in the U.S. and implemented in our domestic law. He discussed not only the extra hurdle the U.S. Constitution throws up for treaty ratification (2/3 of the Senate versus a mere parliamentary majority, typically, in comparable nations), but also the not (reasonable) perception that the international human rights law process is less "democratic" than the U.S. legislative process. Again, the symposium discussion might have benefitted from a wider range of views on the legal panel -- a strong lefty vigorously arguing for complete U.S. adherence to the international human rights system. But all of the participants that I heard on the two panels were good.
Papers from the symposium -- theological, philosophical, and legal -- should appear in the University of St. Thomas Law Journal by next spring.
Tom B.
Sunday, October 2, 2005
Initial briefs for both sides have now been filed in the Supreme Court in Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, the case involving the federal government's threatened prosecution of a religious sect (the UDV) that ingests a tea at its worship services containing a small amount of a natually occuring hallucinogenic substance. As discussed in a previous post here, the sect obtained a preliminary injunction against application of the federal drug laws based on the Religious Freedom Restoration Act of 1993 (RFRA), and this case raises questions about the scope and vigor of RFRA's interpretation that are potentially vital to a wide range of faiths. (The constitutionality of RFRA is not likely to be an issue, since the government has not questioned it.) Oral argument is November 1.
Briefs for the federal government and the UDV are here. A number of amicus briefs supporting the sect are at this site. They include a brief that I co-wrote (downloadable here) on behalf of 17 religious and civil-liberties organizations ranging from the ACLU to the National Association of Evangelicals and including among others Muslims, Orthodox Jews, and Sikhs (the kind of broad ideological coalition that supported RFRA in the first place). The brief argues for a strong interpretation of RFRA's requirement that when government imposes a "substantial burden" on sincere religious exercise, the application of that burden must be justified as the least restrictive means of serving a compelling governmental interest. Excerpts from the summary of argument:
The Government’s challenges to the UDV’s request for an injunction conflict with RFRA’s text and logic and, if accepted, would seriously undercut the statute’s purpose of protecting the religious conscience of all faiths. . . .
First, as RFRA’s plain language provides, the Government must establish that it has a compelling interest in applying the law in question "to the person"—that is, to the claimant’s own particular religious conduct—not merely a compelling interest in the law in general. Requiring the Government to prove the need for regulating the individual claimant is crucial if RFRA’s protections are to be meaningful. Indeed, without such a requirement, the "compelling interest/least restrictive alternative" analysis becomes a tautology: The Government can always claim (despite its present attempt to limit this case to illegal drugs) that it has a "compelling interest" in the uniform application of the law, and on that basis establish that a policy of denying all religious exemptions is the "least restrictive means" of furthering that interest.
Thus, in this case, the Government cannot meet its burden merely by contending that the Controlled Substances Act requires uniform enforcement. Rather, the Government must show a compelling interest in prohibiting the importation and use of hoasca in the specific context of the UDV’s rituals. As a corollary, the Government may not simply rely on generalized congressional findings about a controlled substance but must "demonstrate," with real evidence, that the substance poses compelling dangers in the context of the sacramental use. . . .
Second, given the stringency of the compelling interest test, the Government must prove that the harm to the governmental interest from the claimant’s religious exercise will be serious and likely, as shown by concrete evidence rather than speculation or even general congressional findings. That is why the district court was correct in requiring the Government to show that the UDV’s use of sacramental hoasca tea would create "serious risks of harm" to its members or "a significant risk of diversion to non-religious uses." Given the district court’s finding that the evidence concerning these harms was merely "in equipoise," the courts below properly held that the Government had not met its stringent burden.
When I find a site with amicus briefs supporting the government, I'll pass it on.
Tom B.
I was delayed blogging about this most of the weekend (had to shepherd 24 first-graders to the zoo for a birthday party earlier this afternoon) ... but this past Friday, the University of St. Thomas Law Journal hosted a symposium on "American Exceptionalism in the 21st Century," with an interesting set of philosophical, theological, and legal perspectives on the concept of America's supposed uniqueness in the world. Walter Mondale gave the keynote address.
The panel of philosophers/theologians all criticized, more or less sharply, America's recent actions in the world. Leading natural-law theorist Joseph Boyle (Philosophy, University of Toronto) gave a review of the basic texts and principles of the just-war tradition. I didn't catch all of Professor Boyle's remarks, but he expressed doubt that the Iraq war could be justified under just-war standards.
My St. Thomas colleague (and my compatriot in team-teaching a "Christianity and Politics" course to undergrads and law students) Bill Cavanaugh, a terrific theologian, gave a powerful "theological critique of American exceptionalism." He traced how the Puritans' identification of their purified church as the New Israel morphed into the frequent assertion of America the nation as the New Israel, God's chosen nation. This, he argues, has been a theological mistake with catastrophic consequences, especially for the Church, whose members tend to follow the assertions of political leaders about a "just war" rather than following any lead from the Church's shepherds. (Bill applied this critique to the Catholic supporters of the Iraq war in this 2003 article.) My reaction to Bill's symposium paper was first to agree that we Americans often sacralize the nation, committing idolatry and letting the nation rather than the Church form our judgments -- but also to think that one can many times defend America on the more modest ground that it is a relative force for good in the world, better than many of the alternatives (at the same time that it often merits criticism for arrogance, naivete, and other wrongs). I've wondered if and where the Scriptures provide any model of such a relatively beneficial (though far from perfect) regime: not the chosen nation (like Israel) or the minimally justified keeper of order (like the Roman Empire as portrayed in Romans 13), but somewhere in between. One possibility, raised briefly at lunch after Friday's panel, is the Persian emperor Cyrus, who was scarcely a follower of God but comes off well for letting the Jewish exiles return to Palestine.
Claes Ryn (Politics, Catholic University) argued his thesis that today's neo-conservatives are neo-Jacobins, convinced that their values are universally valid and should be imposed on the rest of the world however recalcitrant it is. They have forgotten, Ryn argues, that the American founders, even as they set forth universal values, also believed deeply in original sin and the need for humility and restraints on power. Ryn adds that in the name of universal values, the neo-conservatives ignore or denigrate historical and traditional differences among societies. Ryn's argument that both original sin and historical-traditional differences call into question the simple pursuit of universal values closely traces themes that I've argued (here) are very important: those in the "realist" tradition of Christian social ethics. For what it's worth, it seems to me there's a strong case that the Iraq war reflects, if not "neo-Jacobinism," then considerable American arrogance: for example, one of the main reasons the administration gave for committing what proved to be inadequate numbers of troops to Iraq was the claim that Iraqis would simply rally to our side, understanding that we simply wanted to free them from tyranny. That was classic American moral hubris, assuming not only that our hearts are pure, but that no one else could fail to agree about our purity.
Still, it is a little more complicated than that, it seems to me. After all, in the reconstruction of Iraq the administration has in some ways been quite attuned to the historical-traditional particularity of Muslim societies. From the start, American was ready to accept an Iraq that, although democratic, was officially founded on Islamic values and also reflected a conscious division/sharing of power among ethnic/religious groups -- both arrangements that are quite different from how we do things in America (where religious disestablishment, color-blindness, and the melting pot are strong ideals). The administration has supported the right to vote and other basic freedoms in Iraq while raising no objections to these other features that would diverge substantially from our practices. Even though the administration has displayed arrogance and hubris in many respects concerning Iraq, hasn't it made a pretty decent stab at distinguishing between nonnegotiable universal values and acceptable historical-traditional particularities?
Since this post is already long, I'll blog separately about the law professors' panel at the St. Thomas Law Journal symposium, which included MOJ friend Paolo Carozza.
Tom B.
Saturday, October 1, 2005
The Washington Post has published this letter, from Captain Ian Fishback, of the 504th Parachute Infantry Regiment, describing his efforts to "determine what specific standards governed the treatment of detainees":
I am a graduate of West Point currently serving as a Captain in the U.S. Army Infantry. I have served two combat tours with the 82nd Airborne Division, one each in Afghanistan and Iraq. While I served in the Global War on Terror, the actions and statements of my leadership led me to believe that United States policy did not require application of the Geneva Conventions in Afghanistan or Iraq. On 7 May 2004, Secretary of Defense Rumsfeld's testimony that the United States followed the Geneva Conventions in Iraq and the "spirit" of the Geneva Conventions in Afghanistan prompted me to begin an approach for clarification. For 17 months, I tried to determine what specific standards governed the treatment of detainees by consulting my chain of command through battalion commander, multiple JAG lawyers, multiple Democrat and Republican Congressmen and their aides, the Ft. Bragg Inspector General's office, multiple government reports, the Secretary of the Army and multiple general officers, a professional interrogator at Guantanamo Bay, the deputy head of the department at West Point responsible for teaching Just War Theory and Law of Land Warfare, and numerous peers who I regard as honorable and intelligent men.
Instead of resolving my concerns, the approach for clarification process leaves me deeply troubled. Despite my efforts, I have been unable to get clear, consistent answers from my leadership about what constitutes lawful and humane treatment of detainees. I am certain that this confusion contributed to a wide range of abuses including death threats, beatings, broken bones, murder, exposure to elements, extreme forced physical exertion, hostage-taking, stripping, sleep deprivation and degrading treatment. I and troops under my command witnessed some of these abuses in both Afghanistan and Iraq.
This is a tragedy. I can remember, as a cadet at West Point, resolving to ensure that my men would never commit a dishonorable act; that I would protect them from that type of burden. It absolutely breaks my heart that I have failed some of them in this regard.
That is in the past and there is nothing we can do about it now. But, we can learn from our mistakes and ensure that this does not happen again. Take a major step in that direction; eliminate the confusion. My approach for clarification provides clear evidence that confusion over standards was a major contributor to the prisoner abuse. We owe our soldiers better than this. Give them a clear standard that is in accordance with the bedrock principles of our nation.
Some do not see the need for this work. Some argue that since our actions are not as horrifying as Al Qaeda's, we should not be concerned. When did Al Qaeda become any type of standard by which we measure the morality of the United States? We are America, and our actions should be held to a higher standard, the ideals expressed in documents such as the Declaration of Independence and the Constitution.
Others argue that clear standards will limit the President's ability to wage the War on Terror. Since clear standards only limit interrogation techniques, it is reasonable for me to assume that supporters of this argument desire to use coercion to acquire information from detainees. This is morally inconsistent with the Constitution and justice in war. It is unacceptable.
Both of these arguments stem from the larger question, the most important question that this generation will answer. Do we sacrifice our ideals in order to preserve security? Terrorism inspires fear and suppresses ideals like freedom and individual rights. Overcoming the fear posed by terrorist threats is a tremendous test of our courage. Will we confront danger and adversity in order to preserve our ideals, or will our courage and commitment to individual rights wither at the prospect of sacrifice? My response is simple. If we abandon our ideals in the face of adversity and aggression, then those ideals were never really in our possession. I would rather die fighting than give up even the smallest part of the idea that is "America."
Once again, I strongly urge you to do justice to your men and women in uniform. Give them clear standards of conduct that reflect the ideals they risk their lives for.
This is a powerful, and inspiring, letter. That said, and not to quibble, it also contains what strikes me as one weak argument. Capt. Fishback writes: "Others argue that clear standards will limit the President's ability to wage the War on Terror. Since clear standards only limit interrogation techniques, it is reasonable for me to assume that supporters of this argument desire to use coercion to acquire information from detainees." I do not see why it is reasonable for Capt. Fishback to assume that, because some are concerned that (what they regard as) unrealistically precise interrogation standards will hamper the Nation's ability to obtain important and useful information from suspected terrorists, they therefore "desire to use coercion." It could be -- couldn't it? -- that they are "concerned" that (what they regard as) unrealistically precise standards will preclude, or be applied in ways that preclude, non-coercive-but-productive interrogation techniques.
Rick
Yesterday, I moderated a panel discussion, "The Catholic Law School", at the "Joy in the Truth: The Catholic University in the New Millennium" conference, sponsored by the Notre Dame Center for Ethics & Culture. Interesting papers were presented by Michael Kenney (Ave Maria), Kevin Lee (Ave Maria), and John Breen (Loyola-Chicago). And, the discussion was enriched greatly by the attendance and lively participation of a number of engaged Notre Dame Law School students.
Breen's paper, "A Critical Look at Jesuit Legal Education," has been discussed here at MOJ before (here, here, here, and here). He insists, in a nutshell, that it is not enough for a law school that purports to be Catholic, or "Jesuit", to gesture vaguely toward "heritage" or "social justice" or "clinical programs"; a Catholic law school must engage the Catholic intellectual tradition, and work to give students reasons why they should care about social justice and clinical programs.
Relatedly, but perhaps even more provocatively, Kevin Lee argued that authentically Catholic legal education must be explicitly and non-superficially theological. It is not enough, he suggests, to explore the Catholic Social Teaching tradition, to engage the law-and-religion debate, or to run public policy through the ethical-analysis gauntlet. Instead, a Catholic law school must investigate, and deploy deeply Christian theological notions of community, love, and the lorship of Christ. (For more, see this post at Lee's "Lex Christi" blog).
Kenney -- who has been a part of the Ave Maria project from the beginning -- shared a very thoughtful reflection about how four of John Paul II's most important works -- Fides et ratio, Evangelium vitae, Veritatis splendor, and Ex corde ecclesiae -- provide a promising foundation for a Catholic law school's mission and curriculum.
The Notre Dame Law School students in attendance added a lot to the panel, challenging us all to think hard about how, if at all, what happens in the classrooms of Catholic Law Schools is, and should be, different from what happens anywhere else.
If any MOJ readers attended the "Joy in the Truth" conference, and have any thoughts to share, please let me know, and I'd post them, as appropriate.
Rick
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