I missed this when it came out, but last week Prof. Bainbridge responded to my post responding to his post questioning whether the minimum wage was consistent with Catholic teachings on the just wage, which seemed to require an individualized assessment of the just wage in any given context.
In his most recent post, he takes issue with my reliance on Economic Justice for All, arguing that (1) it is not authoritative as such because it was undermined by Centesimus Annus (per Neuhaus) and (2) its teachings on the minimum wage are no more than prudential judgments, entitled to less respect than statements of principle.
On (1), I, for one, find Neuhaus's readings of CA to be fairly unconvincing. But no matter, because I don't think I need to defend the authority of EJFA to make my point.
On (2), I think Prof. Bainbridge is missing my point, mostly because I did not make it all that clear in my post. Prof. Bainbridge is looking for an authoritative statement that support
for the minimum wage (or the minimum wage increase) is mandatory in the
same way that opposition to laws permitting abortion is mandatory (that
is, at all times and places). I agree with him that there is no such
statement, as there are with abortion and euthanasia. Such a statement would be fairly silly, because different societies will have
different ways of guaranteeing that a worker receives a just wage. In
a society with a government-guaranteed basic wage, social insurance,
public education (or vouchers), a strong labor movement, and universal
health care, for example, there would be no need for a minimum wage law
at all.
But I take
issue with the premise of his argument that the only way someone can fall out of step
with the Catholic social tradition is by failing to follow a clearly articulated rule. It's just not that easy. Sometimes, the Church says: "Do X & Y." (e.g., Support laws prohibiting abortion and oppose laws legalizing it.) Other times, it says, "Apply principles X & Y."
What we have in this area, however, are principles at work in the Church's authoritative teachings on the economy, including the American bishops' discussion of the minimum wage. (I wouldn't really expect the Vatican to discuss in detail an economic policy so specific to the American experience.) Among others, those principles are that (1) the unfettered market is not an adequate mechanism to guarantee economic justice to workers; (2) the state has an obligation to foster such justice by monitoring and regulating the operation of the market, provided that it does not trample on subsidiary entities capable of doing the same job; and (3) that in formulating its policy responses to the market, we must focus on the well being of the worst off. (I'm going to dispense with citations for these principles, because I think they're uncontroversial, but I'm happy to supply them on demand.)
The question in the area of the minimum wage is not whether opponents are breaking any rules set out by the Church's authoritative teaching, but whether they're applying the right principles (the three I've mentioned, among others) or some other principle (e.g., "Maximize aggregate utility." or, perhaps, "Do what's in the best interests of your supporters in the U.S. Chamber of Commerce.") I think I agree with Prof. Bainbridge that it's impossible to tell the answer to this question just from looking at someone's position on the minimum wage in isolation. But bringing the operative principles into dialog with the precise constellation of economic policies in place and on the table for discussion in our society -- including a nearly exclusive reliance on wages for the employed working class to get the resources they need, along with a weak labor movement -- I find it very difficult to reconcile opposition to the minimum wage as such with the principles I've mentioned (I'm not talking yet here about the decision to raise the minimum wage, which -- I agree with Prof. Bainbridge -- is a question one step more removed). And that is why, I think, notwithstanding CA, the Catholic bishops continue to unqualifiedly support the minimum wage (and demand its increase), as Prof. Bainbridge observes in his post. I think someone who would favor reliance on an unregulated market for wages (that is, someone who would oppose the minimum wage) cannot plausibly claim consistency with the aforementioned principles unless he at least proposes and works for the implementation of alternative policies to guarantee that workers receive the material resources to which they're entitled.
For what it's worth, I think the same goes for increases in the minimum wage, but I agree that that argument introduces a number of other considerations. There's little doubt that, by itself, the current federal minimum wage is not a "just wage," as that term has been defined within CST (except perhaps for those teenagers Prof. Bainbridge discussed in his original post). From what I've read, a nontrivial number of American working families are dependent upon the minimum wage (or upon wages that are just above the minimum wage and probably tied to the minimum wage, at least indirectly). But if that is the case, raising the minimum wage seems like one obvious way to remedy the problem. If, however, you think that raising the minimum wage would do more harm than good (e.g., due to effects on employment), as opponents to the increase claim, that does not let you off the hook within Catholic economic teaching. To plausibly claim consistency with the principles at work in this area, you must come forward with your own policy prescriptions for guaranteeing that the poorest workers receive a just wage that does not involve reliance on the market to sort it all out. As far as I can tell, no such proposals have been forthcoming from opponents of the minimum wage increase.
A change in immigration policy now allows families who are in the
U.S. illegally to be detained. Last summer, Immigration and Customs
Enforcement began holding entire families, including small children, at
a converted prison outside of Austin, Texas.
Officials
say that before the facility opened, illegal immigrants with children
were often released with a notice to appear before an immigration
judge. But the immigrants rarely made their court dates.
Greg
Mead, director of the Hutto Family Residential Facility, says the
facility is crucial to make sure these illegal immigrants don't
disappear.
But the facility, a
converted high-security prison, is coming under increased criticism.
Attorneys for the detainees, many of whom are seeking political asylum,
say it is abhorrent that small children, including babies, are being
incarcerated.
The Hutto facility
currently holds 375 people, more than 200 of them children; its maximum
capacity is listed at 512 people. Everyone, from adults to children to
infants, wears uniforms of either blue or green.
And, of course, when you put people in prison, even small children, folks will treat them like prisoners. So we have this lovely story:
The tour of the T. Don Hutto Family Residential Facility, a former
state prison near Austin, came a week after the Ibrahim family was
released when a federal immigration board agreed to reconsider their
request for asylum.
Attorneys for the Ibrahims, who arrived in suburban Dallas in 2001,
say the five family members felt humiliated by the conditions at Hutto.
Court papers allege that 5-year-old Faten Ibrahim was yelled at and
threatened because she didn't stand still during head counts.
The Washington Defense of Marriage Alliance seeks to defend equal marriage in this state by challenging the Washington Supreme Court’s ruling on Andersen v. King County. This decision, given in July 2006, declared that a “legitimate state interest” allows the Legislature to limit marriage to those couples able to have and raise children together. Because of this “legitimate state interest,” it is permissible to bar same-sex couples from legal marriage.
The way we are challenging Andersen is unusual: using the initiative, we are working to put the Court’s ruling into law. We will do this through three initiatives. The first would make procreation a requirement for legal marriage. The second would prohibit divorce or legal separation when there are children. The third would make the act of having a child together the legal equivalent of a marriage ceremony.
Absurd? Very. But there is a rational basis for this absurdity. By floating the initiatives, we hope to prompt discussion about the many misguided assumptions which make up the Andersen ruling. By getting the initiatives passed, we hope the Supreme Court will strike them down as unconstitutional and thus weaken Andersen itself. And at the very least, it should be good fun to see the social conservatives who have long screamed that marriage exists for the sole purpose of procreation be forced to choke on their own rhetoric.
Initiative 957
If passed by Washington voters, the Defense of Marriage Initiative would:
add the phrase, “who are capable of having children with one another” to the legal definition of marriage;
require that couples married in Washington file proof of procreation within three years of the date of marriage or have their marriage automatically annulled;
require that couples married out of state file proof of procreation within three years of the date of marriage or have their marriage classed as “unrecognized;”
establish a process for filing proof of procreation; and
make it a criminal act for people in an unrecognized marriage to receive marriage benefits.
If so, come on over to the Lincoln Center Campus of Fordham University:
The Spring 2007 Natural Law Colloquium Lecture
February 20, 2007 (Tuesday)
McNally Amphitheatre, Fordham Law School
Michael J. Perry (Emory University
School of Law) "Natural Law and Human Rights:
Why, contra Finnis, Natural Law Needs Religion"
Commentators: James E. Fleming, Fordham University School of Law
Linda McClain, Hofstra University School of Law
Charles Kelbley, Fordham Department of Philosophy and School of Law
This lecture is free and open
to the public, and will be followed by a reception. Attorneys may
obtain CLE credits (2 non-transitional ethics
credits) for attending this event. The cost for CLE credit is $65 (or $55
for Fordham Law Alumni & public interest attorneys).
In order to register for CLE credit, please send any e-mail note to
[email protected], or visit the
following web-site and browse to the program for February 20, 2007:
http://law.fordham.edu/calendar.htm
A reception will immediately follow the lecture and discussion.
Published on National Catholic Reporter Conversation Cafe (http://ncrcafe.org)
Right and left join forces to oppose brave new world of biotechnology
By John L Allen Jr Weekly Created Feb 9 2007 - 09:25
For some time, the politics of
bioethics in the West has fueled deep ideological polarization between
a permissive left and a restrictive right. That was the dynamic when
the front-burner issues were abortion and birth control, and it's still
true of today's most agonizing debates, such as embryonic stem cell
research and end-of-life questions such as those surrounding the Terry
Schiavo case in Florida.
On every one of those issues, the knee-jerk response of the left is
to let people make their own decisions, while that of the right is to
defend life. This fault line forms the core of today's "culture wars."
The primary consequence for the Catholic church has been to drive it
into an ever-tighter alliance with the political right, a trend clearly
in evidence during the 2004 presidential elections in the United
States. This is notoriously frustrating for "seamless garment"
Catholics, who insist that if you take into view the full range of the
church's moral and social teaching, it cannot be subsumed into any
secular ideological formation.
But what if we project forward 10 to 20 years, trying to anticipate
what the front-line bioethical debates will be then? Looking at what's
happening in the biological sciences, such questions may include
cloning, life-extension treatments, the creation of transgenic entities
such as chimeras, the use of genetic technology to "engineer" offspring
with desirable intellectual and physical capacities, and the widespread
use of genetically modified foods.
If that's the future, one surprising consequence is that today's
ideological divisions may become much less clear-cut, as opposition to
the brave new world of biotechnology will stem as much from the left as
the right.
This reality is already crystal-clear in Europe, where the use of
genetically modified foods has basically been stopped in its tracks --
by the political left, not the right. The same phenomenon is in
evidence in the Catholic church, where the most vehement opposition to
GMOs has come from the bishops' conferences of the developing world,
often in tandem with theologians and members of religious communities
who would generally be considered "liberal" on most political matters.
[To read the whole piece, which is very interesting, click here.]
Larry Solum's short paper (posted by Rob) defending judicial formalism as a corollary of public legal reason is interesting and helpful. I appreciate his distinction between the exclusion of comprehensive moral/theological arguments from judicial opinions and from political/legislative debate; for the reasons he notes, the arguments for exclusion are much stronger as to judicial opinions.
I have a question, with apologies if Professor Solum has answered it elsewhere. Among his lexically-ordered set of formalist principles of constitutional interpretation -- beginning with the text and ending with "default rules" such as "minimize judicial discretion and maxmize predictability" -- suppose that in a given case, the crucial level of analysis itself reflects a comprehensive moral or theological conception that would otherwise be excluded under a formalist approach? The most likely such instance would be original meaning, and for subject matter let's take the Religion Clauses, where I believe that this is a very live question.
Suppose we conclude for some current Religion Clause question that precedent, plain meaning, and overall textual structure give no clear answer, so that we must move to the next principle, original meaning. And suppose we conclude that the original meaning embodies, and cannot be stated without setting forth, one or more theological affirmations: for example, that God exists, that following God is the most important calling of human beings, but that such following must always be voluntary. This is essentially the conclusion of works like Steve Smith's excellent The Rise and Fall of Religious Freedom in Constitutional Discourse, 140 U. Pa L. Rev. 149 (1991); the conclusion can of course be challenged, but assume it for purposes of argument. (Although original meaning might in many cases be found from sources, such as dictionaries, more prosaic than arguments of theology, it may also be -- and let's assume -- that we cannot explicate how words such as "free exercise of religion" or "establishment of religion" were used in 1791 without setting forth and directly applying the theological understandings that underlay them.)
If original meaning necessarily embodied and required application of such a comprehensive (theological) conception, should the judicial formalist apply that principle notwithstanding its comprehensive nature? A number of scholars essentially say that this conception, even if embodied in and necessary to the original meaning, cannot ground constitutional interpretation in today's religiously pluralistic society because it is too "partial," i.e. it fails the test of public reason in the Rawlsian sense. But what is left after original meaning if, by hypothesis, prior levels of formalist analysis, such as precedent and plain meaning, have also proven insufficient? (What in fact has happened in the Religion Clause instance is that scholars, and the Supreme Court, have turned to constructing their own theories based on "the best understanding of religion in modern society" or similar criteria (which may or may not satisfy the test of Rawlsian public reason but which are certainly controversial and widely disputed).) Compared with such efforts, is it preferable to stick to original meaning even if explicating that meaning requires explicitly setting forth and applying a theological or other comprehensive conception?
The New York Times has now picked up the Edwards blogger flap story. Not suprisingly, the paper quotes the less offensive comments made by the bloggers about Catholics and plays up the easy William Donohue angle, leaving the impression that this may be a conservative overreaction. A single quote from Eduardo could have brought some helpful nuance to the analysis. And speaking of howlers, check out this evidence of a true Catholic-loving vibe:
In a brief note on her personal blog on Wednesday, Ms. McEwan [one of the Edwards bloggers] said that in the 2004 presidential election she had voted for Senator John Kerry, the Massachusetts Democrat who is a Roman Catholic, which she said was evidence that she was not anti-Catholic.
Our fellow Mirror of Justice blogger Eduardo Penalver is quoted on the flap over the allegedly anti-Catholic bloggers hired by the John Edwards for President campaign:
"We're completely invisible to this debate," said Eduardo Penalver, a Cornell University law professor who writes for the liberal Catholic journal Commonweal. He said he was dissatisfied with the Edwards campaign's response. "As a constituency, the Christian left isn't taken all that seriously," Penalver said. ...
In a comment that several Catholic Democrats told The Politico they found particularly offensive, Edwards aide Amanda Marcotte wrote, in a posting to her personal blog, on "What if Mary had taken Plan B after the Lord filled her with his hot, white, sticky Holy Spirit?"
The other Edwards blogger, Melissa McEwan, has come under fire for referring to Christian conservatives as “Christofascists” in her personal blog.
Thursday, the campaign issued a statement from Edwards saying that he had been personally offended by the remarks and that the bloggers "have both assured me that it was never their intention to malign anyone's faith, and I take them at their word."
... “I thought his explanation was not satisfying," said Cornell's Penalver. "It's obvious that they did mean to give offense."
"You imagine a similar kind of comment directed at the Jewish community or at the gay community – something at this level of intentional offensiveness -- and I have a hard time believing it gets resolved in the same way," he said.
In a letter delivered by hand Wednesday afternoon, Redmond officials
warned St. Jude Catholic Church that if the church welcomed a homeless
encampment this weekend, it would be breaking city code and subject to
code enforcement, said Stephen Fischer, senior planner with the city. On Monday, a city hearing examiner granted an appeal to the permit
that laid out the terms of the Tent City 4 stay in Redmond. The appeal
stated that the city's planning department erred by failing to bring
the issue before the City Council.
City officials say the hearing examiner's decision means Tent City 4 no longer has a permit to move to Redmond, Fischer said. City planners plan to appeal the hearing examiner's decision to the
City Council, he said. The planning department contends that it
followed proper permit procedure, Fischer said. St. Jude's pastor, the Rev. David Rogerson, said he and other
members of the pastoral council planned to meet Wednesday night to
discuss whether the church will welcome the campers Saturday, the
planned move-in date. The camp is currently set up at St. John Mary Vianney Catholic
Church in the Finn Hill neighborhood near Kirkland. Camp adviser Bruce
Thomas said the campers have no place else to go, and promised their
host and neighbors they'd be out by the weekend.
USA Todayreported the other day ("Wider Death Penalty Sought") that "[a]t least a half-dozen states are considering broadening the death penalty, countering a national trend toward scaling back its use." I wonder, though -- does the "bucking the trend" claim rely on an apples-and-oranges comparison?
On the one hand, several states' legislatures are, it appears, expanding (slightly) the reach of their death-penalty laws (Texas and Tennessee, for example, are considering proposals to "include certain child molesters who did not murder their victims"). On the other, we have some executive moratoria, and several courts have stopped executions until arguments about the lethal-injection process are resolved.
Maybe this is getting too nit-picky, but I am not sure I see a conflict between (a) enlarging the set of crimes for which death is a legally authorized and (according to the legislature) morally permissible punishment (I'm putting aside questions about whether the expansion is constitutionally permissible), and (b) halting executions -- temporarily -- while certain procedural problems are addressed and remedied.
Also, I wonder -- how would / should these legislative proposals factor into the Court's Atkins / Roper / "evolving standards" analysis?
