Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Thursday, October 12, 2006

Responses to Eduardo and Steve

I would like to thank Eduardo Peñalver and Steve Shiffrin for their thoughtful commentaries and to my earlier posting on “Voting for the Common Good”. I am grateful for their respective postings to which I now respond.

With regard to Eduardo’s remarks, I recognize and do not deny that there are, at one level, different questions regarding office holders and voters. But, sooner or later, in spite of the independence of some officeholders from their constituents, the two groups are linked. Legislators, some government executives, and some judges hold office because they receive an electoral mandate from a majority of the voters. Thus, with regard to these officials, there inevitably is a nexus between the voter and the office holder. When the gap increases between the two and the nexus shrinks, the holder of the office may well be without an office to hold.

In short, sooner or later, the connection between the responsibilities of the Catholic office holder and the Catholic voter is established. Catholics, be they in political life or public life as holders of office or as holders of the franchise, share a common responsibility to infuse the temporal order with values that express the moral teachings of the Church if they continue to be members of the Church. The official behavior of Catholic public officials is linked with the electoral behavior of the Catholic voters who have a role in placing these officials into office.

Eduardo states that I assume that “abortion should be the most weighty issue due to the gravity of its evil…” It seems that he agrees with me that it is a most weighty issue. There are also other weighty issues in close proximity—euthanasia and embryonic stem cell research. This is so because of the gravity of their evils—the deliberate taking of human life that can be identified as “innocent.” Eduardo properly goes on to identify other important moral issues including the death penalty, unjust war, and the advocacy of torture. Let me compare and contrast the issues of abortion and the death penalty.

First of all, the Church’s teachings on these two grave subjects are different. Second, there is another difference that needs to be considered, and this concerns the numerical distinctions between the annual number of abortions and the number of executions performed. According to the Alan Guttmacher Institute, the annual number of legal abortions performed each year beginning in 1980 and running to the present day ranges from 1.3 to 1.6 million per annum. In contrast, according to the United States Department of Justice, Bureau of Justice Statistics, the number of executions in the United States from 1993 to the present has ranged between 37 and 98 per annum. These may be 37 to 98 executions too many. But it also needs to be remembered that just one abortion is too many. Both of these points regarding different teachings and statistical comparisons are relevant considerations for Catholics, be they office holders or electors. Moreover, for me, both of these points are relevant to ascertaining what is “extraordinary and compelling.”

I would now like to respond to Steve’s commentary of my earlier post. Like him, I recall the nativist spirit that existed and may still exist in the U.S. against the presence of Catholics and their participation in public life. One need only recall the cartoons of Thomas Nast and some contemporary illustrations to realize that this attitude did exist and still does in some parts of the U.S. I am hesitant to agree with him, however, on his two assertions that introduce a statistical or numerical component into his argument. At one point he states in regard to Catholic acceptance of “the absolute power of the Magisterium,” “the overwhelming majority do not.” Later, in the context of the “conception of conscience” that is “fully consistent with American democracy”, he states that “the overwhelming majority of American Catholics” subscribe to the aforementioned “conception of conscience.” I would like to learn more about the source of the data that Steve uses and how he defines this “conception of conscience.”

But I would also like to offer two remarks about the exercise of conscience and the American Catholic. The first involves an illustration from forty-six years ago when Senator John Kennedy was running for the Presidency. When he was running for the Presidency, he had delivered his famous and controversial speech in Houston to an association of Protestant ministers in which he emphasized his strong belief in an “absolute” separation of Church and State “where no public official either requests or accepts instruction on public policy from the Pope, the National Council of Churches or any other ecclesiastical source.” However, after he was elected to the Presidency, and shortly following the encyclical’s promulgation, President Kennedy spoke at the Centennial Celebration at Boston College, and in his address he offered a different perspective from the speech he delivered to the Protestant ministers. He said of Pacem in Terris: “As a Catholic I am proud of it, and as an American I have learned from it.” Clearly the impact of Pope John’s letter had an impact on Kennedy once he became President. In a carefully worded general statement, the U.S. State Department subsequently indicated that the points developed in the encyclical about disarmament, world peace, and development “should be the aspirations of all governments…” It appears that once elected to the Presidency, John Kennedy may have overcome his initial concerns about the effect of the encyclical and began to see its possibilities as an asset for Western diplomacy. Does this not suggest something about the formation of his conscience as well as something about prudential politics?

The second remark is also about conscience as practiced by American Catholics. I am not so sure that I would endorse Steve’s remarks in light of the Second Vatican Council Decree on Religious Liberty—Dignitatis Humanae Personae. While the Decree supports the view that a person should not be forced to act in a manner contrary to one’s conscience, we must also consider what John Courtney Murray, a principal drafter of the text, said about conscience: “[T]he Declaration nowhere lends its authority to the theory for which the phrase frequently stands, namely, that I have a right to do what my conscience tells me to do, simply because my conscience tells me to do it. This is a perilous theory. Its particular peril is subjectivism—the notion that, in the end, it is my conscience, and not the objective truth, which determines what is right or wrong, true or false.”

Finally, I am puzzled by Steve’s reference to “First Things” Catholics, regardless of whether they are right or wrong, whoever they may be. This has me wondering if there are “America” Catholics; “Commonweal” Catholics; “Crisis” Catholics; “NCR” [National Catholic Reporter] Catholics who are not to be confused with “NCR” [National Catholic Register] Catholics. For what it is worth, I usually read all these publications; whether my reading of them identifies me as one type of Catholic versus another type of Catholic is another matter.   

Again, my sincere thanks to Eduardo and Steve for their important commentaries of my earlier posting. I am grateful to them both.    RJA sj

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