Like Richard, I would like to follow up on Rick’s invitation to respond to Professor Foley’s interesting column on “Stem Cells and Constitutional Duty.” I thought it would be useful to reread or review several relevant texts before offering my response. The texts I re-examined are the following: the majority opinion in Roe v. Wade; the majority in Stenberg v. Carhart; and Michael Scaperlanda’s and John Breen’s important and insightful essay Never Get Out’a the Boat: Stenberg v. Carhart and the Future of American Law.
I begin with one area of agreement with Professor Foley: people do have a right under domestic and international law to beget children, or not. But once they do, regardless of the method used to “beget,” their responsibilities and accountabilities arise. I suspect this is where Professor Foley and I would begin to part company. And so, let me offer some principal points of disagreement with her commentary.
I must respectfully disagree with her contention that the President abused his Executive Power and violated his Article II oath to “preserve, protect and defend the Constitution of the United States
.” First of all, the President followed Article I, Section 7.2 of the Constitution in registering his disagreement (objections) with the stem cell legislation. Under the Constitution, it was for the Congress to override the veto with a super majority, and this the Congress failed to do in spite of its attempt. I cannot see how the President failed in complying with the duties of his oath as she asserts. It may be that Professor Foley disagrees with the President’s objections (this seems a plausible avenue to consider when one reads the rest of her commentary). But her disagreement with his justification for the veto does not make the case for stating that he abused his power and violating his Constitutional oath.
I think Professor Foley and I have very different understandings of what the majority said and did not say in Roe v. Wade. Let me concentrate on those issues that are raised in her commentary. The majority did not define the meaning of “person” in Roe. Therefore, it did not answer the question posed by the State of Texas
. As a matter of fact, Justice Blackmun avoids answering “the question” when he concludes the relevant discussion in Section IX of the majority opinion by stating: “This conclusion [regarding the majority’s dicta about the 14th Amendment and the nature of personhood], however, does not of itself fully answer the contentions raised by Texas
, and we pass on to other considerations.” I believe the inability of the Supreme Court in Roe to define personhood is one of the important points made and ably demonstrated by John and Michael’s essay to which I have previously referred. In candor, the Court avoided the issue and hence passed “on to other considerations.” The Court did not define the vital term “person.”
Of course, while we are at it, we need to consider that the Constitution’s original text did minimize or eliminate the personhood of some human beings. Article I, Section 1.3 states that those human beings bound in permanent servitude only counted for three-fifths of a person; native peoples counted not at all. With the passage of time, these provisions limiting or denying personhood were superseded by the 14th Amendment. Since the Court has not addressed the issue in Roe or any other case regarding the personhood of the embryo or fetus, I shall hold further comment on Professor Foley’s remarkable observation.
Professor Foley also develops an interesting argument when she asserts that “parental liberty trumps any interest government might have in protecting pre-viable human embryos.” While the United States
never ratified the San Jose Convention (American Convention on Human Rights) of 1969, it did sign the instrument. Normally signature implies that the signatory country, even though not a party by ratification or accession, will not do anything to undermine the objectives of the instrument. In any case, this instrument states one relevant objective in Article 4 that “Every person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception…” Another concern I have with Professor Foley’s contention on this topic is who should be considered the “parent” of cloned human embryos? In spite of some set backs, scientists are getting closer to cloning human embryos. Should that occur, will they be considered the “parents” of these embryos; will those who donated cell material used for each clone be viewed as the “parents”? If so, what liberty of theirs is at stake? But then Professor Foley concludes in this part of her discussion that the President’s view on the status of embryos and his interpretation of the Constitution conflict with the undeniable law of the land. I respectfully suggest she is wrong in this assertion.
Another of her points meriting response is her contention that the President relied on his personal moral views in the exercise of his veto power; Professor Foley further contends that this is fundamentally antithetical to the law because it was contrary to the Constitution (the President “pursue[d] an agenda contrary to our declared Constitution”) and thwarted the will of “We the People.” By her professed standard, it would follow that President Clinton acted unconstitutionally in his “thwarting” the will of “We the People” when he vetoed the partial birth abortion legislation duly enacted by Congress.
This brings me to Professor Foley’s general concerns about the difficulty with relating “personal moral views” and public policy and law making. It would seem that she would also be opposed to “personal moral views” that support environmental, safety and health, and education legislation, too. Of course, many who supported the Civil Rights Act of 1964 did so out of their “personal moral views.” We must not exclude the fact that President Lyndon Johnson relied, in part, on morality when he signed this important legislation on July 2, 1964. On the important occasion he stated, “But [discrimination] cannot continue. Our Constitution, the foundation of our Republic, forbids it. The principles of our freedom forbid it. Morality forbids it. And the law I will sign tonight forbids it.” [italics mine] I wonder if Professor Foley would consider the civil rights legislation tainted by the President’s remarks?
It would seem that Professor Foley and others make another invalid assumption about moral (or religious) views that support public acts such as law making. The second error that I believe she makes in this regard is her inability to concede that, at least on some issues, the views of moral and religious persons can coincide with persons who subscribe to purely positivist outlooks. History demonstrates that this coincidence has existed in the past. I am confident it will continue in the future.
A final comment pertains to Professor Foley’s rhetorical flourish when she claims that the President has assumed “near dictatorial power” in exercising his veto. The President did no such thing. He followed the Constitution as I have demonstrated. Now, had he used his Article II power as Commander-in-Chief of the Armed Forces and prohibited the Congressional attempt to override the veto, she would have reason to express this concern. But, this is not what the President did; he simply followed the Constitution.
Another aspect of her flourish is in her concluding sentence that the President’s veto did not preserve, protect or defend OUR Constitution; rather, “he was giving it [the Constitution] the finger.” Which finger, Professor? His index finger used in emphasizing a point? Perhaps it was a thumbs up gesture? Or, maybe it was a thumbs down gesture? Since the President is a Texan, perhaps Professor Foley did not recognize some effort on his part to signify “hook-um horns”. But, I shall leave the interpretation of any hand gestures to those more skilled in construing body language. RJA sj
Just a couple of quick points on the estate tax, the elimination of which I still believe faces opposition from the principles of CST. I agree with Greg that policy judgments require wading into the facts, but my impression is that the case for elimination is grounded more in rhetoric than in fact-based concern for the common good. From a report by the group Public Citizen:
A 2005 report by the Congressional Budget Office found that at the current exemption level of $2 million, very few family farms would owe an estate tax. If the $2 million threshold existed in 2000, as many reform proposals would have allowed, only 123 farms in the entire country would have owed estate taxes that year. The CBO study also found that among the very few that would owe taxes, the vast majority would have sufficient liquid assets (savings, investments and insurance) to pay the taxes without having to sell off any farm assets. For example, at the $2 million threshold, only 15 of the farms would have had insufficient liquid assets to pay.
Like the allegations about family farms, the notion that the estate tax forces family-owned enterprises out of business is equally fallacious. Of the 2.5 million people who died in 2004, only 440 left a taxable estate with farm or business assets equal to at least half the total estate, according to the Tax Policy Center, a joint project of the Urban Institute and the Brookings Institution, and 210 of these owed less than $100,000.
I'll also note that this is not an inconsequential debate: the same report estimates that a full repeal of the estate tax would cost the government $1 trillion over ten years.
Rob
I don't think that Professor Foley's view that President Bush violated his oath of office is remotely plausible, though it is surprising how frequently these arguments are made. The same sort of argument was made against the Unborn Victims of Violence Act. I had a chance to testify on this legislation and the exact same argument came up in the hearings. In response to the argument that it was inappropriate for Congress to fail to demonstate the intellectual submission of intellect and will to the Court's opinions in Roe and Casey, even when operating outside the context of abortion, I quoted Lincoln's statement in his First Inaugural Address: "At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation bewteen parties in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal." This seems to be just as persuasive today.
Richard M.
Here is a link to a new paper of mine, "The Freedom of the Church", which is forthcoming in the "Journal of Mirror of Justice" . . . I mean, the "Journal of Catholic Social Thought." Here's the abstract:
This Article focuses on what the American theologian and Jesuit John Courtney Murray called a Great Idea, whose entrance into history marked the beginning of a new civilizational era. That idea was libertas ecclesiae, or the freedom of the Church. It served, according to Harold Berman, as the catalyst for the first major turning point in European history and as the foundation for nearly a millennium of political theory. And, this Article suggests, it remains a crucial component of any plausible and attractive account of religious freedom under and through constitutionally limited government.
It is tempting to assume or expect that such a great idea must be deeply rooted and comfortably well established in our Constitution's text, history, structure, and doctrine. However, this Article suggests that there might not be, in American constitutional law, a commitment to - or even room for - the libertas ecclesiae principle, richly understood. Instead, it could be that we are living off the capital of this idea - that is, we enjoy, embrace, and depend upon its freedom-enabling effects - without a real appreciation for or even a memory of what it is, implies, and presumes. In our religious-freedom doctrines and conversations, it is more likely that the independence and autonomy of churches, or of religious institutions and associations generally, are framed as deriving from, or existing in the service of, the free-exercise or conscience rights of individual persons than as providing the basis or foundation for those rights. Accordingly, this Article considers Murray's warning that the individual conscience is not equal to the burden of being the keystone of the modern experiment in freedom.
I'd welcome any reactions.
On a related note: At a recent conference, "Can You Tell Me What a Parish Is?", held at Loyola in Chicago, I commented on an (excellent) paper by Mark Chopko. During the break, Fr. Michael Sweeney, O.P., the President of the Dominican School of Philosophy and Theology, made an important and perceptive point about the Freedom of the Church, namely, that -- properly understood -- is not only the narrow concern of the Church, but a benefit to all of us who value living under constitutionally limited government, and who think that such government makes more likely authentic human freedom.
I am interested in people's reactions to this piece, from Jurist, by Professor Elizabeth Price Foley. She contends that, because "[t]he Constitution, as interpreted by the U.S. Supreme Court for the last thirty-three years, does not recognize pre-viable embryos as 'human life'"; and because, given Casey and Roe, "under the Constitution of the United States, parental liberty trumps any interest government might have in protecting pre-viable human embryos"; it is therefore the case that "when President Bush justified the use of his veto power to prevent 'the taking of human life,' he was using Executive power to effectuate a personal moral view that is fundamentally antithetical to the law as declared by the Constitution and interpreted by the U.S. Supreme Court. He was defeating a legislative act – thwarting the will of 'We the People' – to pursue an agenda contrary to our declared Constitution."
Is this argument -- I hope I have stated it fairly -- persuasive, or even plausible? Put aside, for now, doubts about whether the Roe line of cases in fact stands for a constitutional-law rule that pre-viable embryos are not "human life" (as opposed to a rule that, because such embryos are not "persons" protected by the Fourteenth Amendment, before viability, a woman's privacy and liberty interests outweigh whatever interests the state might have in protecting them). Is it likely that the President's duty to “preserve, protect and defend the Constitution of the United States" precludes him from vetoing a bill for moral reasons that are in tension with the premises and implications of a particular line of Supreme Court decisions? I would not have thought that even the strongest judicial-supremacy positions entailed such a result.
On the question of the elimination of the federal estate tax, as with most issues of economic and government welfare policy, the implications of Catholic Social Thought depend on how one sees and judges the underlying practical realities. Once pat-answers and bumper-sticker slogans are left behind, the exploration of such matters necessarily—and quite appropriately—turns on how things look on the ground, where the rubber meets the road. Catholic teaching helps us formulate the questions and rules some motivations in and out of bounds. But we are not spared the hard work of grappling with complex sociological factors, understanding statistics, evaluating economic models, trying to anticipate secondary effects, in other words, all the messiness of real life. As a consequence, prudence often leaves us in a position where reasonable people with full fidelity to the precepts of Catholic Social Thought come to different conclusions.
For many people, proposals for elimination of the federal estate tax evoke images of fabulously wealthy trust fund babies living the playboy life off the income generated from inherited assets of a prior generation. If this is all that were at stake in the estate tax issue, then the only question for Catholic thinkers would be whether a proposal to tax this transfer of wealth were motivated by a legitimate sense of equity and securing revenues to advance the common good or instead by envy and, as Rick Garnett puts it, a “soak the rich” attitude.
Instead, it is significant that the most vocal supporters of the proposal to eliminate the estate tax are the various associations and federations of small business people and family farmers. When the owner of a small business or farm dies, the estate tax requires that the entity be valued according to its going value were it to be sold, that is, were the business to be transferred by sale to a new owner and were the farm-land to be sold. If an estate tax is then pressed against that value, the effect then could be to force the sale of the business or farm land to pay the tax, thus preventing transfer of the family business or family farm to the next generation.
When thinking about the estate tax and the implications for Catholic Social Thought, consider these words of the David McClure, president of Montana Farm Bureau Association:
“When the average person sees the figure of $2 million as the current exemption, or even $3.2 million, which is the exemption in 2009, it sounds like a lot of money. However, when you look at how land prices in Montana are currently skyrocketing, it doesn’t take a whole lot of land to exceed that value. Farm operations are capital-intensive businesses whose assets are not easily converted to cash. Add your farm equipment—a combine can be worth well into six figures—barns and sheds, and you’re usually well over that amount.”
As bad as would be the loss of the family farm itself, the implications for Catholic Social Thought do not end there. As Mr. McClure notes, if the family farm is subject to forcible sale to cover the estate tax, there could be a cascade effect on the rest of the rural community, with respect to agriculturally-related small business that support the family farm, social structures behind family farms, etc. In addition, urban sprawl and loss of agricultural land is advanced by the state tax. To again quote Mr. McClure: “The irony is that many who are opposed to death taxes elimination are the ones who are vocal about expanding high-density subdivision development, urban sprawl and loss of aesthetically attractive ag land open space; yet the underlying driver of these very problems is often an estate tax bill that the heirs can’t pay."
Consider further the case of family-owned businesses, including those that began small but have grown beyond the size of the classic Main Street merchant. A family that has built a business over time and now have a number of stores or locations could easily have built something now valued at several million dollars, although that value is mostly sunk into the capital assets of the business. The imposition of the estate tax upon such a family businesses could well force the enterprise to be put up for sale or converted into a publicly-held corporation. The estate tax thus contributes to the decline of family-owned businesses, with the loss of the social benefits that we all obtain from having our local retailers and service-providers owned and operated by individuals who are personally invested to the community.
It is striking that those who bewail the rise of Walmart and other mega-corporate retailers are also likely to support a robust imposition of estate taxes that undermine the family-owned businesses that compete against the Walmarts of the world. Moreover, the estate tax essentially discriminates against the family-owned businesses and in favor of the Walmarts and other publicly-held corporations. While the large corporate entities pay taxes on profits only once, the family-owned business may be taxed on the same profits twice, once when initially earned and then again, upon the death of the original family owner, when the estate tax is imposed against the business assets which were acquired by investing those profits back into the family business.
Might an alternative estate tax regime be created that avoided these effects, that is, allowed for a transfer of family businesses and family farms, thus being imposed only in the context of the stereotypical extremely wealth trust fund babies? Perhaps. But it would be a different system than is presently in place and if calibrated to avoid destroying family-owned businesses that have a paper value of fairly large size would generate a very small revenue for the federal government. Nor would secondary economic impacts thereby be avoided, as we still would experience the effect of removing those investments from the private economy; effectively encouraging resort to various means by which to avoid estate tax implications, whether those are economically productive and socially desirable or not; and the continued expenses of tax-planning paid to lawyers, especially by those family-owned businesses and farms that we want to exempt if they are able to structure arrangements appropriately. Is it really worth the candle? And, by this point, is really a matter with deep implications for Catholic Social Thought and worthy of attention among the other pressing issues in this society?
Greg Sisk
Just a quick follow-up to Rick's post about yesterday's Senate vote. Teresa Collett (who is from St. Thomas and is probably the leading expert on parental notice laws) and I testified last year on H. R. 748 (the Child Interstate Abortion Notification Act). The full hearing is available here.
Richard M.
