Tuesday, February 7, 2006
Anyone in the Philadelphia area on April 7 may want to stop by a mini-conference we will be holding at Villanova on Deus caritas est. Cosponsored by our law school with other university departments, the interdisciplinary conference will be from 2-4 pm on April 7 in the Connelly Center. Speakers will all be Villanova faculty, and will include MOJer Patrick Brennan as well as Jeanne Heffernan, a Catholic political theorist whom many of our readers may know.
-- Mark
Here is our own Steve Bainbridge's take on (what I regard as) the disappointing statements issued by "the Vatican" in response to the reactions in some corners of Islam to some anti-Muslim cartoons in a Danish newspaper. And, here is my own (earlier) post on the subject. Here is Jody Bottum's post, on what appears to be a double-standard at work in the Boston Globe's coverage of the whole matter.
My student, Cody Groeber, has a thoughtful essay in the Notre Dame newspaper, proposing -- among other things -- that a rich understanding of "academic freedom" needs to take into account the freedom of distinctive institutions and associations -- subsidiarity, anyone? -- to construct and protect their distinct, expressive identities and messages. (Cody is responding to this letter, written by a member of the campus Libertarians.)
I wanted to call attention to an interesting Note recently published at 90 Minn. L. Rev. 500 (2005). The title is "Meet Me at the (West Coast) Hotel: The Lochner Era and the Demise of Roe v. Wade." The author, Jason Adkins, notes Planned Parenthood v. Casey's emphasis that it was a changed understanding of the facts of economic and social life that led the Court to abandon economic substantive due process in the 1937 decision in West Coast Hotel v. Parrish. Adkins argues that the Court ought to use a similar logic and overturn Roe v. Wade because of the increasing evidence of the harmful effects of abortion on women and society. This focus on the real world consequences of abortion, as opposed to the "abortion as essential to the emancipation of women" ideology expressed in the last opinions of Justice Blackmun on this issue, is really useful.
Richard
A couple of weeks ago I posted Richard John Neuhaus's stark portrayal of what is at stake in the Church's enforcement of the ban on gay priests. The editors of Commonweal have now responded:
[L]ike many Catholics, Commonweal is engaged in the difficult task of discerning whether new understandings of homosexuality are compatible with the gospel and the church’s moral tradition. We look first to the church for guidance and instruction. But since God’s presence in the world is not confined to the church, we also look to the lives and testimony of our friends and neighbors. No one should pretend that reconciling homosexual love with the church’s teaching is easy or perhaps even likely; and no one should assume it is impossible. God, we are convinced, is both faithful and known to confound expectations. Neuhaus, on the other hand, argues that the church’s teaching about homosexuality is not open to debate or evidently to any further development. The debate, however, is taking place, and Catholics betray no disloyalty or impiety by participating in it.
In the end, the “crisis of authority” in the church and cause of confusion among the faithful come from the unpersuasive reasoning given by those who advocate banning all homosexuals from the priesthood. The Vatican statement, as the commentary on it has suggested, remains ambiguous on this point, while the Catechism instructs us to avoid “every sign of unjust discrimination” against homosexuals. Cardinals and bishops, not just the Jesuits, have offered varying interpretations of what compliance with the Instruction requires. Yet Neuhaus insists that those who disagree with his interpretation of the document are “imperiling their souls and the souls of others.” The moral danger, however, is quite the other way around: souls would be imperiled if honest doubts were not voiced and questions not asked. As the gospel says, sometimes a man has to do what a man has to do.
Rob
Rob's post appropriately reminds us that the structural features of our Constitution -- i.e., vertically and horizontally divided and limited powers -- reflect, among other things, a view (see, e.g, Federalis 51) that human beings are not angels. That said, it is -- in my view -- a stretch to suggest that it is "not consistent . . . with the Christian view of law and government" to believe (not simply because it is "expedient", but because it is consistent with the relevant text and precedents) that the Administration is correct in concluding that it has the lawful authority -- whether under Article II, or under the AUMF -- to eavesdrop on international phone calls involving persons suspected of having terrorist-affiliations.
Now, Rob is right, of course, that -- as a matter of common sense and political prudence, to say nothing of Christian appreciation for original sin -- protections of civil liberties need a firmer foundation than the "trust"-worthiness of elected officials, and that our Constitution aims to provide such a foundation through -- among other things -- its structure of checks and balances. There is no doubt that reasonable people can and do disagree about whether this Administration (like the last one) has an excessively expansive understanding of the powers of the Executive branch, as opposed to those of Congress. But, we should remember, it is every bit as much a feature of our Constitution's design that, say, the executive power is vested in the President, and that the President is commander-in-chief, as it is that, say, Congress has the power of the purse and the Court the power of judicial review. It is clear (to me) that (many of) the very same people who designed and defended the constitutional structure believed in an energetic and powerful Executive, just as they believed in checks and balances, separation of powers, federalism, and individual rights.
In my view, it is not, as Rob suggests, "conclusory" for the Administration to say that it has the authority to conduct the NSA program being debated. Obviously, the Administration should provide -- and has provided -- what it regards as arguments for the conclusion that it has this authority. Certainly, it would not be enough to say, "we can do what we want, and the lawfulness of our actions is supplied entirely by our good intentions." But this is not, really, the Administration's argument.
Now, to be clear: I am as big a fan as anyone of the idea that the Constitution's structural features are essential to meaningful protections of freedom, and that these features should be judicially enforceable. I am a big fan of meaningful Fourth Amendment protections. I am not addressing here the question of the degrading treatment of detainees. And, I am not saying that the President's legal arguments for his authority to by-pass FISA, in some circumstances, and to eavesdrop on suspected hostiles are, at the end of the day, compelling. I am -- genuinely -- unsure. But I do not think they are frivolous. And, with all due respect, I am confident that they are not un-Christian.
Readers might be interested in this review of Brokeback Mountain. In this review, Steven Greydanus acknowledges the artistic merit of the movie. He, however, ultimately concludes with this critique: "In the end, in its easygoing, nonpolemical way Brokeback Mountain is nothing less than an indictment not just of heterosexism but of masculinity itself, and thereby of human nature as male and female. It's a juandiced portrait of maleness in crisis--a crisis extending not only to the sexual identities of the two central characters, but also to the validity of manhood as exemplified by every other male character in the film. It may be the most profoundly anti-western western ever made, not only post-modern and post-heroic, but post-Christian and post-human."
I should say that I have not seen the movie. In that regard, the movie joins the company of every other non-animated movie made in the last 17 years.
Richard
As the political storm over the Bush Administration's domestic surveillance program rages on, I've been struck at the apparent absence of a distinctly Christian perspective from the debate. While many Christians' support of President Bush may make their silence politically expedient in the short term, it is not consistent, in my view, with the Christian view of law and government.
Among the foundational tenets of Christianity is a belief in original sin. In the Christian worldview, sin is an inescapable component of the human condition, and government – as an institution created and operated by humans – must account for the reality of sin. This belief was not foreign to the Constitution’s framers, as evidenced by their genius in establishing a government of separated powers and checks and balances. James Madison made the connection between sinful man and the constitutional dispersal of power explicit in Federalist No. 51:
[T]he great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. [A]mbition must be made to counteract ambition. . . . It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary.
As a believing Christian, President Bush presumably would not dispute the need to account for the fallen nature of office-holders in our government structure. But he too frequently seems to be paying scant homage to that need for accountability in carrying out the war on terror. Whether the accusation pertains to the torture of suspected terrorists, the factual premises of the Iraq invasion, or the prospect of the government listening in on Americans’ phone calls, his response often seems to boil down to derivations of two themes: “Trust me” or “I need this power to keep us safe.”
For example, in admitting more than four years of surveillance without adhering to the statutory requirement of court authorization, President Bush offered this conclusory assurance to the nation: “one, I've got the authority to do this; two, it is a necessary part of my job to protect you; and, three, we're guarding your civil liberties.” From a Christian perspective, the preservation of civil liberties must be rooted in structural safeguards, not on personal assurances. The problem does not disappear with the President’s good-faith intentions; it remains pressing as long as the courts have been removed as an effective check on executive power. Especially in a war that has no readily conceivable end, invoking the prospect of American casualties to justify the consolidation of power in one person is dangerous business.
Christian skepticism toward even the well-intentioned presidential power grab must transcend political affiliation and personality. It’s not a function of the trust we place in the President; it’s a function of our beliefs about human nature.
Rob
Monday, February 6, 2006
Richard Alleva, who has been reviewing films for COMMONWEAL since 1990, has long been one of my favorite film critics. I had been wondering if and when he would review Brokeback Mountain. I discovered today that he has--and although I don't always see eye to eye with Alleva (not that I'm any expert on film), I agree with everything he says about Brokeback in his review.
What does Brokeback or Alleva's review have to do, if anything, with "Catholic legal theory?" you ask. Well, just as a film about capital punishment can bear on the moral discourse about capital punishment, and a film about abortion can bear on the moral discourse about abortion, so too can a film about the love between two gay men bear on the moral discourse about same-sex unions. And Brokeback does indeed bear on the moral discourse about same-sex unions.
Here are some excerpts from the review:
Miraculously, you discover that you can take your heart out of your chest without dying. Well, perhaps you’re not really alive but you walk, talk, get business done, and nobody suspects that you are actually an ambulatory corpse. You keep your still throbbing heart in a little box in the attic. You go up to visit it from time to time. In the attic’s darkness you breathe on your heart, whisper tributes to it, caress it with your eyes. Of course you must keep your visits furtive and few lest anybody suspect how weird you are. Suspicious or not, family and friends come to regard you as dry, ungiving, and...well, rather heartless.
That’s the emotional gist of Brokeback Mountain, adapted from Annie Proulx’s short story by Larry McMurtry and Diana Ossana and directed by the versatile Ang Lee. Two rootless young men, Ennis (Heath Ledger) and Jack (Jake Gyllenhaal), dress like cowboys but get summer jobs shepherding near the slopes of a mountain in 1963 Wyoming. Ennis, an emotionally stunted orphan (and probable virgin), doesn’t know what he wants out of life, while Jack Twist, a sly tease with the demurely downcast eyes of a Victorian cherub, knows that he wants Ennis (none of this is in the dialogue, but it is superbly conveyed by Lee’s staging and choice of close-ups). On a freezing night in a tent, Jack gets what he wants and Ennis discovers he wants the same thing. But the next morning Ennis sternly declares that he “ain’t no queer,” and Jack protests, “I ain’t either.” And they both believe what they say. Queers are effeminate, right? And these two know they are real men, so they can’t possibly be queers, right? But their hormones are in command, and for the rest of the summer the youths obey their bodies with ardor. Going their separate ways in the fall, Ennis gets married and ekes out a Spartan existence for a wife (Michelle Williams) and two daughters while Jack does the rodeo circuit in Texas before marrying Lureen (Anne Hathaway) whose rich father is willing to take a son-in-law into the ranch-equipment business, an arrangement that turns Jack into an amusing consort and later into a court jester. Thus concludes the first third of the movie.
Then comes the heartbreaking rest of life as lived under the emotional shadow of Brokeback Mountain. Jack, financially comfortable but sexually and emotionally itchy, begins visiting Ennis a couple of times a year, the two going off to “fish” near their old shepherding grounds. Do these periodic revels bring enough relief to make their quotidian lives less parched? Sadly, the opposite seems to be the case: the vacations bleed work and family life pale. Ennis becomes that proverbial sad drunk in the darkest corner of the bar. Jack, growing a black moustache, comes to resemble a gigolo, which may be an indication of how he feels about himself vis-à-vis his rich wife. The two men have stored their hearts on Brokeback Mountain and are getting, in early middle age, too winded to make the climb.
Alleva concludes his review by emphasizing that Brokeback
is not a gay movie. I say that not because the principal artists involved are all straight. (Ironically, Ledger and Williams are now engaged to be married.) This superb work of art is about the tragedy of emotional apartheid, and none of us, no matter our sexual orientation, is ever safe from the way life conspires to make us put our hearts on ice.
To read Alleva's whole review, click here.
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mp
I was interested to read the posts by MIchael and Rick linking the statements of the Presidents of Loyola and Notre Dame regarding performances on campus of the Vagina Monologues. I should start by saying that I have never seen a production of the play and therefore can not speak to whether it treats women as sexual objects and degrades them, as one critic has charged, or whether it promotes the authentic human development of women.
Without regard to the merits of the play, I wonder whether part of the difference how Jenkins (Notre Dame) and Wildes (Loyola) speak about the issue has to do with the question of repeat vs. single performance. Jenkins raises a concern about endorsement and refers a couple of times to the fact that the performance of Vagina Monologues has been an annual event at Notre Dame and the fear that the repeated performances convey a message of endorsement. Although I may be wrong, I read Wildes to be speaking of a single event.
I think the endorsement question is an interesting one and wonder whether people think one ought to think differently about an annual event vs. a single showing of something that is inconsistent with Catholic views.
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