In response to my post on Fields v. Palmdale School Dist., a couple of readers have pointed out that, as of 2003, federal law forbids local schools from requiring any student, "as part of any applicable program, to submit to a survey, analysis, or evaluation that reveals information concerning . . . sex behavior or attitudes" without parental consent. 20 USC 1232(h). (Parental consent was obtained in this case, but the parents were not informed of the nature of the survey's questions.) This statute wasn't enacted in time to help the Palmdale parents, but does this take care of the problem? Should the courts stay out of it? As Eugene Volokh argues,
Whether or not the school district's decision may have been wrong, foolish, or harmful, it wasn't unconstitutional. The proper remedy for the district's failure is through the elected branches of government, not through the federal courts setting educational policy.
On one hand, depending on the elected branches of government to validate rights that should be recognized as part of the natural order of society provides little comfort to those concerned with state encroachments on the family. On the other hand, expecting extralegal normative claims to be embraced by courts is a high-wire act in today's environment of bitterly contested normative claims offered from a variety of anthropological perspectives. This raises a familiar concern for Catholic legal theorists: should we advocate for robust conceptions of the unenumerated constitutional rights we favor, like parental rights, or should we resist "rights talk" across the board for fear of where that path may lead (and has already led)?
The U.S. Conference of Catholic Bishops has stumbled again on the path to bring the faithful the Mass in English that is faithful to the tradition, but the Conference, thank God, has pushed through other mighty barriers to speak against death's being used as a criminal sentence.
From the Catholic News Service, 15 Nov. 2005:
. . . A statement approved today by the U.S. Catholic bishops by a vote of 237 - 4 declares the United States cannot “teach that killing is wrong by killing those who kill.” The use of the death penalty contributes to a cycle of violence in our society that must be broken, according to A Culture of Life and the Penalty of Death. “The sanction of death violates respect for human life and dignity.”
The statement describes the death penalty as a continuing sign of a “culture of death” in U.S. society. “It is time for our nation to abandon the illusion that we can protect life by taking life,” the bishops’ document asserts. “When the state, in our names and with our taxes, ends a human life despite having non-lethal alternatives, it suggests that society can overcome violence with violence. The use of the death penalty ought to be abandoned not only for what it does to those who are executed, but what it does to all of society.
The statement echoes the powerful words and courageous action of Pope John Paul II who taught clearly and forcefully against the use of the death penalty. In his encyclical, The Gospel of Life, Pope John Paul II insisted that punishment “ought not go to the extreme of executing the offender except in cases of absolute necessity: in other words, when it would not be possible otherwise to defend society. Today, however, as a result of steady improvements in the organization of the penal system, such cases are very rare, if not practically non-existent.”
In a visit to St. Louis in 1999, Pope John Paul II said, “The new evangelization calls for followers of Christ who are unconditionally pro-life: who will proclaim, celebrate and serve the Gospel of life in every situation. A sign of hope is the increasing recognition that the dignity of human life must never be taken away, even in the case of someone who has done great evil…I renew the appeal I made…for a consensus to end the death penalty, which is both cruel and unnecessary.”
The new statement from the bishops of the United States also acknowledges that more must be done to assist victims of violence and loss. “They deserve our compassion, solidarity and support—spiritual, pastoral and personal. However, standing with families of victims does not compel us to support the use of the death penalty … No act, even an execution, can bring back a loved one or heal terrible wounds. The pain and loss of one death cannot be wiped away by another death.”
The statement includes brief statements and stories from the families of victims of deadly crimes as well as from a former death row inmate who was exonerated. While the statement acknowledges that people of goodwill can disagree on this issue, the bishops encourage engagement and dialogue, not judgment and condemnation, in the hope of leading others to a reexamination and conversion.
This statement is part of a wider Catholic Campaign to End the Use of the Death Penalty including a new web site (www.ccedp.org). Many people, especially Catholics, are reexamining their past support for the death penalty. A survey conducted by Zogby International, Inc. in November 2004 and March 2005 of 1700 Catholics suggested that support for the death penalty among Catholics had dropped from 70 percent in the 1970’s to under 50 percent in 2005. It also reported that those who attend Church often are more likely to oppose the use of the death penalty, with respect for life cited most frequently as the reason.
The Catholic Campaign to End the Use of the Death Penalty urges Catholics to pray for victims of crime and their families as well as those on death row and the prison officials who watch over them; to reach out to families who have lost loved ones through violence; to learn more about the Church’s teaching on the death penalty; to educate others, especially through the Church’s parishes, schools and other programs; to advocate for the end of the use of the death penalty in states that have capital punishment; and to change the debate by emphasizing life over death.
“We don’t really expect the use of the death penalty to end in one piece of sweeping legislation or a stunning court decision, although we’re making significant progress in both legislatures and the courts,” explained Bishop Nicholas DiMarzio, chair of the bishops’ Domestic Policy Committee. “Rather, it will wither away in the daily and individual choices of prosecutors and legislators, judges and jurors and ordinary Catholics and others. We believe this day will not come easily, but with hard work and prayer it will come sooner rather than later.”
The statement, which was developed by the USCCB Domestic Policy Committee with the support of the Committee on Pro-Life Activities and the Committee on Doctrine, is the first comprehensive statement focused on the death penalty by the Catholic bishops of the United States in twenty-five years.
The statement and the campaign call on Catholics to defend all human life and unite together to be “people of life for life.” This issue, says the statement, “is more than public policy; it involves our faith…[it] is more than how to respond to violent crime; it is about justice and what kind of society we want to be…this initiative is not about ideology, but life and death.”
Today's Washington Post has a confession from a journalist who aborted her baby after learning that he had Down's Syndrome. An excerpt:
While I have no doubt there can be joys and victories in raising a mentally handicapped child, for me and for Mike, it's a painful journey that we believe is better not taken. To know now that our son would be retarded, perhaps profoundly, gives us the choice of not continuing the pregnancy. We don't want a life like that for our child, and the added worry that we wouldn't be around long enough to care for him throughout his life.
Why is the journey better not taken? Because it is painful? Whose pain is motivating the decision -- the pain of the child or the pain of the parents? If the latter, the writer's angst is a thin disguise for selfishness. If the former, who is she to presume that the child would decide that no life at all is preferable to a life with pain? Andrea Yates, after all, saved her children from the pain of growing up in a fallen world by drowning them in a bathtub. Does the degree of pain accompanying Down's Syndrome make this a qualitatively different decision?
Another gem:
I'm sure pro-lifers don't give you the right to grieve for the baby you chose not to bring into the world (another euphemism, although avoiding the word "abortion'' doesn't take any sting out of the decision to have one). Only now do I understand how entirely personal the decision to terminate a pregnancy is and how wrong it feels to bring someone else's morality into the discussion.
I think most pro-lifers would encourage the writer to grieve the baby's absence; but they would also point out that the grief should encompass the reason for the baby's absence.
Earlier this month--on November 6--the Birmingham [Alabama] News editorial page began a six-day exploration of the death penalty in Alabama. To quote: What we have done is look at capital punishment in the context of
some of our strongly held views on other life-and-death issues. In the course
of that inquiry, we found it increasingly hard to reconcile our traditional
support for the death penalty with our reverence of life, as expressed in our consistent
opposition to abortion on demand, embryonic stem-cell research and euthanasia. Eventually, the editors concluded:
Put simply, supporting the death penalty is inconsistent with our
convictions about the value of life, convictions that are evident in our
editorial positions opposing abortion, embryonic stem-cell research and
euthanasia. We believe all life is sacred. And in embracing a culture of life,
we cannot make distinctions between those we deem 'innocents' and those
flawed humans who populate Death Row.
Faith tells us we all are imperfect, but we're not beyond
redemption. We believe it's up to God to say when a life has no more purpose on
this Earth.
This six-part series, which relies in part on the teaching of John Paul II (Catholics have come a long way in Alabama!), is must reading for anyone interested in the morality of capital punishment.
To read the whole series, click here. _______________
In response to my earlier post on Palmdale and parental authority, Oglethorpe Univ. politics prof Joseph Knippenberg sent me his essay on the case; here's his conclusion:
[I]n allowing school officials to sometimes get away with insensitive and offensive behavior, the courts are reminding us that they are not our primary protector of rights. Rather, our rights are primarily protected by individual responsibility and vigilance. The Palmdale parents shouldn’t have sued; they should have burned up the phone, FAX, and Internet lines to the school board; they should have held school officials accountable for rectifying their shoddy research oversight in the next school board elections; and, if all else failed, they should have pulled their children out of the public schools, sending them to private schools or educating them at home.
The lesson here, then, is not that we parents have no right to choose how and what our children will learn, but that we parents are responsible for exercising that right through the choices we make regarding the education of our children. At the very least, we should actively demand school choice, and not just between various public options. And at most, we should bring our children back home, where strangers are much less likely to inquire into whether they “can’t stop thinking about sex.”
This case can, in other words, be a victory for parental control, if only we act like parents, and not like wards and clients of the state.
I agree that courts should be the refuge of last resort in a pluralist democracy. But in an educational system that does not meaningfully acknowledge our pluralism, the last resort may be the only resort. Grass-roots action means little where there is no viable exit option. Unless the school's practices offend enough parents to pose a realistic threat to school board members at the next election, administrators have little incentive to take the perspective of dissenting parents seriously. In this regard, Knippenberg is correct to call for school choice. I've always been a bit uncomfortable with the home schooling option, as it seems akin to responding to the surrounding culture by waving the white flag. But if I encountered school officials with the same degree of sensitivity displayed by those in Palmdale, I might reconsider.
I'm flying this evening to Rome with SWBO this evening; will be there about a week. My primary "business" purpose will be to speak at a fascinating conference that Amy helped organize on the topic of "Relazionalita nel diritto; quale spazio per la fraternita?" (accents missing). or "Relationships in law: is there a space for fraternity?" The sponsore are the organizations Commune e Diritto and Movimento dei Focolari. I'll be spoking mainly on my usual theme of the tension between corporate law norms and CST concepts of community and fraternity. If you're going to be around Castel Gandalfo this Friday and Saturday, you might want to stop by (well, maybe Father Araujo may be in the neighborhood!). For more info send an email to dirittoATfocolare.org. I've got some other Villanova business in Rome, but will try to spend some time revisiting the haunts of my student days and seeing the sights. I'm also looking forward to visiting our Augustinian's HQ, St Monica's, which is right behind the colonnades at St Peters. Speaking of conferences in Rome, St. Tom's excellent John Ryan Institute for CST (et al.) is sponsoring an excellent confab on Oct 5-7, 2006 at the Angelicum on the topic of "The Good Company: CST and Corporate Social Responsibility in Dialogue." The Call for Papers just came out; for more info see www.stthomas.edu/thegoodcompany . The principal organizers are Mike Naughton and Helen Alford OP, two of the major voices in this field. At this time tomorrow I'll be eating the famous Tuscan white beans at Nino's on the Via Borgogna. I'll resist the temptation to post a description of every meal, lest I be charged with the sin of gluttony or inciting others to the sin of envy.
FSU law prof (and Prawfsblawgger) Dan Markel has posted an interesting paper on SSRN, "State, Be Not Proud: A Retributivist Defense of the Commutation of Death Row and the Abolition of Execution." Here is the abstract:
In the aftermath of Governor Ryan's decision to commute the sentences of each offender on Illinois' death row, various scholars have claimed that Ryan's action was cruel, callous, a grave injustice, and, from a retributivist perspective, an unmitigated moral disaster. This Article contests that position, showing not only why a commutation of death row is permitted under principles of retributive justice, but also why it might be required. When properly understood, retributive justice, in its commitment to moral accountability and equal liberty, hinges on modesty and dignity in modes of punishment. In this vein, retributivism opposes the apparently ineluctable slide towards ever-harsher punishments in the name of justice. While the thesis I defend is sited in the particular context of the death penalty, the implications reach more broadly; the argument offered here signals that a commitment to retributivism in no way impedes the realization of humane institutions of criminal justice and a rejection of the benighted, misbegotten, and often brutal status quo we shamefully permit to endure.
Dan's is, in my view, a very important argument. As I see it, retributive justice (properly understood) is the primary end of, and justification for, "punishment." It is unfortunate that Christian thinking about punishment often runs along a "retribution bad, rehabilitation and restoration good" line -- see, e.g., the statement by the United States Conference of Catholic Bishops, "Responsibility, Rehabilitation, and Restoration." (Rehabilitation and restoration are good, of course. But it is a criminal's moral desert that, as I see it, justifies punishment.) The best arguments against the death penalty, I think, are those that -- like Dan's -- proceed from retributivist premises, which strike me as being more consonant, in the end, with the dignity of the human person. (I flesh out this view a bit more here.)
Columbia law prof Michael Dorf has this opinion piece, "A Catholic Majority on the Supreme Court: The Good News in Judge Alito's Nomination, and a Warning":
[I]n a country with a history of anti-Catholic bias, anti-Semitism, anti-Mormonism, and pogroms against Jehovah's Witnesses as recently as the 1940s, members of the majority religious group will, it seems, have just two of nine seats on the Supreme Court with nary an issue being raised. That fact shows that, in important respects, we have become a religiously pluralist nation.
Yet the news is not entirely good. As I explain below, there remain doubts about Americans' capacity for religious tolerance for persons of other faiths, and beyond the sectarian divisions, there appears to be a new line of battle being drawn. This line separates, on the one hand, non-believers and believers who treat their faith as a private matter, and, on the other hand, believers of all faiths who question the notion of church-state separation.
"Government vs. Happiness" is the title of this post over at the Volokh Conspiracy. According to this study, by three Swiss economists, "government involvement is detrimental to individuals' quality of life."
I'm not competent to evaluate the study's methodology, so I do not know if it is true that "life satisfaction decreases with higher government spending. This negative impact of the government is stronger in countries with a leftwing median voter. It is alleviated by government effectiveness - but only in countries where the state sector is already small."
If this conclusion is true, though -- or even if it were true -- then what should we think?
The relationship between American legal/social attitudes toward race relations and toward church-state relations is an interesting and not sufficiently explored area. I have one piece on it, and there are a few others. Among the tensions in the subject is that while African Americans can be expected to have a disproportionate suspicion of majoritarianism and therefore favor strong readings of the Estalbishment Clause to protect religious minorities, such strong separationist readings can also run headlong into the fact that African American churches have long had a strong public, almost community-defining role in their neighborhoods -- they resist the kind of privatization that white churches have often embraced and that so often correlates with strict separationism. Now on SSRN, Chicago law prof Tracey Meares and law clerk Kelsi Brown Corkran post a rich and wide-ranging draft article discussing some of these issues, titled "When 2 or 3 Come Together":
This article investigates policies that are responsive to crime in disadvantaged, urban neighborhoods from a community-based context. The vehicle is an analysis of a community-wide prayer vigil held in Chicago in May of 1997. The vigil resulted from a collaboration between the Chicago Police Department and hundreds of (mostly) African-American churches on Chicago's West Side. Strikingly, the local police district's commander facilitated the vigil. We explain the sociological and political significance of this collaboration by drawing upon the "Chicago School" of urban sociology and demonstrating theoretically and empirically the potential for the collaboration, through the integration of key community institutions, to promote community capacity to resist crime and to complete other goals and projects of residents. The article's end addresses constitutional questions. If collaboration between churches and the police through religious activity enhances the community efficacy of poor minority neighborhoods, is there any way to reconcile the benefits of such activity with constitutional concerns about religious establishment? We focus on the extent to which African Americans have been able to influence this jurisprudence through litigation rather than the internal structure of Establishment Clause jurisprudence. A review of the litigation reveals the particular nature of the involvement of African Americans in the development of Establishment Clause jurisprudence, and it demonstrates plainly the extent to which judicial sanction of church-state interaction has had, and continues to have, important racial consequences. African Americans, through representative litigating institutions, have consistently recognized the disparate impact of church-state partnerships, but the Court has never acknowledged the non-religious implications of its Establishment Clause decisions. As a result, Establishment Clause jurisprudence is disconnected from the realities of disparate impact, and that is potentially problematic for African-American communities. We believe excavation of the realities of disparate impact is critical in assessing the extent to which modern church state partnerships should be allowed or even blessed by the state.
