With all due respect to Eduardo, I do not think that I am (or Ramesh Ponnuru is) trying to "have cake and eat it too." After quoting from my recent post and Ponnuru's recent piece, Eduardo writes,
I simply can't find a way to reconcile these perfectly reasonable statements with attempts to rule out as unreasonable certain positions on how best to deal with the problem of abortion that do not involve its legal prohibition at all.
First, my "perfectly reasonable statement[]" regarding the possibility that abortion -- although a grave moral wrong -- need not be treated in law precisely like "murder" is premised on it being the case that the Constitution has been repaired, and that democratic decision-making about abortion is once again permitted. When it comes to decisions about politics, voting, elections, and so on (to which Eduardo turns later in his post), it seems clear to me that one political party has, as its unshakeable priority, not the reduction of poverty, or the elimination of the death penalty, or peace in the world, but the preservation of those precedents that preclude even compromise regulations of abortion. So, as to the question whether it is "unreasonable" to "deal with the problem of abortion that do not involve its legal prohibition at all," I guess I think it is more appropriate -- given the truth about what abortion is -- to say "because abortion is the wrongful taking of a human life, it is important that -- even if it is punished differently than murder is punished -- the law identify it as such, call it wrong, and communicate our moral disapproval, through punishment, of it" than to say "we should -- indeed, under the Constitution, this is all we may do -- limit our efforts to stop abortions to measures aimed at creating conditions in which fewer abortions take place, and not pursue -- because, after all, the Constitution would not permit -- measures that reflect our judgment that abortion is immoral." Ponnuru's openness to compromise and pluralism assumes a background recognition in law that the unborn child is a human being, whose life it is wrong to take, and who ought, in justice, to enjoy protection, of some kind, from private violence.
Eduardo criticizes those who thought or said that "faithful Catholics cannot prioritize issues like the poverty, the death penalty, or the Iraq war over the abortion issue or vote for a presidential candidate who opposes the legal prohibition of abortion." I have always made clear my recognition that many faithful Catholics did prioritize issues in this way. (And, I hope Eduardo would agree, many faithful Catholics elected to prioritize abortion, and changing the jurisprudential regime that insulates abortion from democracy, over slight shifts in tax rates or the slightly different approach to Iraq that Sen. Kerry advocated in 2004.) I think what concerned some of us in 2004 was not simply that Sen. Kerry "oppos[ed] the legal prohibition of abortion" (but was clear about his moral opposition to abortion, and his desire to change people's minds about abortion, etc.), but that he "ran on" abortion and mischaracterized the nature of his critics' opposition to abortion, and that he and his Administration would have opposed even the regulation of partial-birth abortion, would have nominated Justices who would likely shore up the Stenberg decision, would have supported public funding for abortions, here and abroad, and so on.
Eduardo and I agree that, in most cases, "it is perfectly reasonable for Catholics to vote on the basis of issues on which more immediate progress is likely to result from a change in leadership." In my view, though, in 2004, it did not seem to be the case that a vote for Sen. Kerry would have resulted in "more immediate progress" on issues like, say, the death penalty or poverty, than has, in fact, resulted on issues like abortion from the election of Pres. Bush. As for the "slow road" charge, it seems to me that -- for all the complaints one might have, and should have, about the Administration's policies and Congress's (in)actions -- Pres. Bush is supporting and signing a good bit of pro-life legislation, and taking many pro-life steps on its own.
The Wall Stree Journal reports here that "[t]he federal agency that builds courthouses, border stations and other federal buildings is set to name a new chief architect, a move that could usher in a return to a more traditional type of architecture in the government's $10 billion construction program." The new chief architect is said to be Thomas Gordon Smith, a professor in Notre Dame's School of Architecture and a colleague of MOJ-friend Philip Bess.
Here's a quote from the story:
Others are worried federal architecture will lose its cutting-edge focus. Henry Smith-Miller, of Smith-Miller + Hawkinson, a New York firm, which designed a border station under construction in Champlain, N.Y., said he finds Mr. Smith's appointment "deeply troubling." He called Mr. Smith's traditional views "anti-progressive." It "picks up the imperial nature of Roman architecture, which was in service to the empire rather than service to democracy," says Mr. Smith-Miller.
Ah, yes -- "cutting-edge" and Modern architecture are so democratic . . . . The common man just loves this stuff. Here, by the way, is a post from Concurring Opinions with lots of pictures of new courthouses. And, here is a post from Concurring Opinions with lots of pictures of old courthouses. Advantage: Old.
Rick says:
I am inclined to agree with Eduardo that there is a difference -- one
that is relevant to the perpetrator's culpability and deserved
punishment -- between procuring or performing an abortion and
maliciously causing the death of an adult. True, both involve the
deaths of human beings, and both are wrong. But, it seems to me, the
state-of-mind, or mens rea is almost certainly different (if
only because the humanity of the victim, and therefore the wrongfulness
of the conduct, is impossible to avoid in the latter situation), and so
it does not seem to me odd, or hypocritical, to concede (as Ponnuru
does) that the law may treat them differently.
Ponnuru says:
[O]ur society includes people who take many different
good-faith moral views about the issue, [and] I can see this pluralism as a
legitimate reason for lenity in enforcing the prohibition.
I simply can't find a way to reconcile these perfectly reasonable statements with attempts to rule out as unreasonable certain positions on how best to deal with the problem of abortion that do not involve its legal prohibition at all. If "pluralism" about the status of a fetus is "reason for lenity in enforcing the prohibition" of abortion, to the point of ruling out criminal sanctions at all, at least for the present time, why isn't that same pluralism a reason for abstaining from legal prohibition in the first instance unless or until we can form a greater societal consensus? If the decision of which sanctions to impose leaves "considerable room for prudential judgment in the drawing up of laws," why doesn't the decision whether to ban abortion at all?
On top of all of this, I see no way to reconcile the content of this discussion about the many prudential judgments required in devising a legal response to abortion (a discussion with whose basic premises I am in complete agreement) with the more strident arguments calling abortion murder, comparing the abortion issue to slavery, deriding Democrats as the "Party of Death," and suggesting (as many Catholic Republicans did during the last election) that faithful Catholics cannot prioritize issues like the poverty, the death penalty, or the Iraq war over the abortion issue or vote for a presidential candidate who opposes the legal prohibition of abortion. I just don't think you can have your cake on this and eat it to. If abortion is the murder of millions of innocents that dwarfs all other issues, then there is no room for compromise or delay (including by your own favored politicians, who, despite control over all branches of the federal government and a majority of state governments, seem to be taking the slow road to the promised land). If, however, abortion is a terrible wrong, the legal response to which is a complicated prudential issue on which reasonable people can disagree, and about which our society currently enjoys no consensus at all, then it seems to me that the permissible policy positions are far more numerous than is typically admitted and that, in addition, it is perfectly reasonable for Catholics to vote on the basis of issues on which more immediate progress is likely to result from a change in leadership.
Here is a response, by Ramesh Ponnuru, to some of the critiques of his book, "The Party of Death." (See these posts.) With respect to the charge that Ponnuru fails to see or embrace the implications of his pro-life views for the criminalization and punishment of abortion, Ponnuru writes:
It is true that I don’t lay out a detailed version of an ideal legal code concerning abortion. I had three important reasons for this “omission.” The first is that legislatures and voting publics are not yet in a position to be enacting ideal legal codes, and the case for allowing them to do so — which can include a case for the general reasonableness of the anti-abortion position — has to be made before it makes much sense to proceed to the next steps.
The second, related one is that my view of politics is not utopian. A slow process of persuasion, of asymptotic approaches to justice, is not a compromise; it is the very best that we can hope for. I have no illusions, and indulge none in the book, about the likelihood that a democratic resolution of the abortion debate would involve the triumph of my views on, say, the permissibility of aborting fetuses because of their disabilities. If we reach a point where unborn children are generally protected, I may write a book attempting more persuasion. But it would be a very different book.
My third reason is that there is considerable room for prudential judgment in the drawing up of laws. In one state, penalties might have to be tougher to deter a crime. I don’t have an ideal legal code in mind for prohibiting homicide in general, and I think that homicide laws may rightly vary according to the circumstances of time and jurisdiction. That doesn’t nullify my view that all places ought to prohibit homicide.
Yet I say enough to refute the charge that Rauch makes. I don’t sidestep the issues he addresses. See page 262, where I offer a reason for considering abortion “less culpable than, say, the murder of a business rival out of greed,” and for thinking it “just to impose less severe punishments.” I also explicitly say that if a legal regime of delicensure and fines for abortionists “deterred abortion and communicated the state’s and the public’s hostility to abortion. . . there would, in my view, be no need to go further” (p. 246).
In other words, I outlined the principles that ought to govern these laws in as much detail as the matter allows. I explained the sense in which abortion is analogous to other kinds of homicide (its deliberate ending of a peaceable human being’s life) and the sense in which it is not (the subjective moral intent likely to be behind the act). To put it a different way: While I cannot assent to the common pro-choice argument that we should allow the killing of unborn human beings since our society includes people who take many different good-faith moral views about the issue, I can see this pluralism as a legitimate reason for lenity in enforcing the prohibition.
Thoughts?
