| Is Public Reason Counterproductive? | |
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EDUARDO M. PENALVER Cornell Law School April 17, 2007 Cornell Legal Studies Research Paper No. 07-004 |
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Abstract: The debate over the proper role of religion in public life has raged on for decades and shows little signs of slowing down. Proponents of restrictive accounts of public reason have proceeded under the assumption that religious and deep moral disagreement constitutes a threat to social stability that must be tamed. In contrast to this "scary story" linking pluralism with the threat of instability, there exists within political theory a competing, "happy story" according to which pluralism affirmatively contributes to stability by creating incentives for groups to moderate their demands. Whether the scary story or happy story is a more accurate reflection of our reality is a difficult empirical question, but one that ought to matter a great deal to discussions of public reason. Acting as if the scary story were true when the happy story is in fact operating will lead proponents of public reason to stifle the healthful effects of robust pluralism, degrading the quality of public deliberation and ultimately undermining stability. In other words, if the happy story turns out to be the right one, restrictive accounts of public reason may turn out to be counterproductive, hastening the very deliberative and social harms they aim to forestall. Click here for the download link. |
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Tuesday, May 1, 2007
Eduardo's New Paper
Burke and Bulverism
MOJ reader Jonathan Watson had these thoughtful comments on the Campell essay on Burke v. Crow that I excerpted:
I think that Ms. Campbell's final statement does not draw a careful enough line among competing "free speech" doctrines. There is a certain minimal guarantee of free speech set forth in the Constitution. Aside from whether the current legal thought on that guarantee is overbroad or overly-restrictive, there is no guarantee set out that anyone need listen to what one says, respect the content of what one says, or even avoid saying that what one says is motivated by an impermissible set of norms. The guarantee only prevents the state, state-related actors, or even private actors, from taking certain actions against one in regard to what or how one engages in speech.
Where Ms. Campbell seems to be aiming, and what needs better definition, is the implications for the philosophical marketplace of ideas, the naked public square. C.S. Lewis described the issue as one of bulverism, where one need not argue that one's opponent is wrong - just assume that he is wrong, and then spend the rest of the time showing how he came to be wrong. What has occurred with Archbishop Burke, and to a greater or lesser extent, to any Christian apologist or thinker, is precisely this. The hows of our time include arguments by anyone who embodies or holds a normative set of commitments which purport to be simultaneously religiously informed and true for all of humanity. So, then, if such an individual's conclusion (cutting Medicare is wrong) agrees with secular conclusions, there is no need to reach the second part of Lewis's bulverism. However, if the individual's conclusion disagrees with secular thought (Sen. Kerry's position on abortion is wrong), then the individual is simply assumed to be wrong because of the religious commitment, without need for further definition or argument. This has serious implications not for the legal doctrine of free speech, but for the philosophical marketplace of ideas, and for society at large.
Colson on Carhart and the Court's Catholics
Charles Colson -- an (obviously) prominent Evangelical and, among other things, the inspiration for the Prison Fellowship -- released this statement, after several critics of the Court's recent partial-birth abortion ban attributed the Catholic Justices votes to uphold the ban to, well, their Catholicism. Here's a bit:
If you uphold a law approved by both parties in Congress and supported by most Americans, you are imposing your morality. But if you vote against the ban, you have nobly kept your religious views from interfering with your job. The ugly implication here is obvious: that it is not possible for faithful Catholic judges to carry out their responsibility to interpret and uphold the law. . . .
Protestants have a special duty to condemn anti-Catholic bigotry. Shamefully, at one time many Protestants accepted the vile teachings of Paul Blanchard, author of American Freedom and Catholic Power. They supported the anti-Catholic agenda of the group for which he was general counsel: Americans United for Separation of Church and State. Our Catholic brethren should not have to wait to hear our voices forcefully raised against the bigotry now directed against them.
Interesting times.
"Church, State, and the Practice of Love"
I've put up on SSRN a version of the paper I presented at Villanova last fall (and which is now out in the Villanova Law Review) at the (wonderful) Scarpa Conference. The paper is called "Church, State, and the Practice of Love." Here's the abstract:
In his first encyclical letter, Deus caritas est, Pope Benedict XVI describes the Church as a “community of love.” In this letter, he explores the “organized practice” love by and through the Church, and the relationship between this practice, on the one hand, and the Church's “commitment to the just ordering of the State and society,” on the other. “God is love,” he writes. This paper considers the implications of this fact for the inescapably complicated nexus of church-state relations in our constitutional order.
The specific goal for this paper is to draw from Deus caritas est some insight into what is a fundamental and – at present – the most pressing challenge in church-state law, namely, the preservation of the Church's moral and legal right to govern herself in accord with her own norms and in response to her own calling. It asks, what does the new Pope's work and thinking, about the future and present state of the Church and her organized practice of love, suggest about the appropriate content and vulnerable state of the rights and independence of religious groups – and of the freedom of the Church?
You can download the paper here.
Bishop Burke v. Sheryl Crow
Colleen Carroll Campbell has an interesting essay at NRO online about the criticism of Bishop Burke's resignation from the foundation board of the Catholic children's hospital in St. Louis in reaction to their decision to feature Sheryl Crow (a very public advocate for abortion rights and embryonic stem cell research) at a fundraiser. Her closing paragraphs:
Many religious leaders have learned that they receive more flattering press if they focus their political pronouncements on the fight against poverty or global warming and avoid issues like abortion. Burke surely learned this lesson. The same critics who loudly told him to stay out of politics in 2004, when he criticized Sen. John Kerry’s views on abortion, voiced no such concern in 2005, when he protested Missouri’s Medicaid cuts.
Today’s religious leaders increasingly face a double standard when it comes to their public pronouncements: They can say what they want as long as they express politically correct views or stay mum on hot-button social issues. Where secular pundits and celebrities are given free reign to plead their case to the public, religious leaders are derided as theocrats for injecting religiously derived moral principles into political debates. This stifling of religious voices is intended to prevent religious conflicts in the public square. But it also prevents the most fundamental form of deliberation necessary to the functioning of a pluralistic democracy: honest debates about right and wrong, good and evil, truth and falsehood.
Burke’s resignation from the foundation board clarified how seriously the Catholic Church takes its teaching about the sanctity of human life from its earliest stages. That teaching may not be popular or politically correct, but Burke has the right to defend it. To vilify him for speaking out because he wears a bishop’s mitre is the epitome of religious intolerance. Such intolerance should frighten religious believers and free-speech defenders of all political persuasions.
Catholic Justices and the Death Penalty
I appreciate very much Eduardo's recent post -- following up on our earlier not-quite-serious exchange -- about Catholic Justices in death-penalty cases. I am open to his argument that "general immorality of the death penalty imposes some obligations on someone in a position of authority with the discretion to act accordingly." That said, I remain leery of suggestions -- and I am not saying Eduardo is suggesting -- that (a) because the death penalty is immoral, it follows that (b) in order to judge morally, a Catholic appellate judge needs to sustain (all) legal claims brought by inmates on death row. This leeriness is not, I think, inconsistent with my view that, in order to legislate morally, a Catholic legislator must resist expanding, and must try to reasonable regulate, the Court-created abortion right.
News from Ireland about Abortion
MOJ-friend Gerry Whyte writes: "The abortion issue has raised its head again here in Ireland. Yesterday a 17 year old girl in the care of the State applied to the High Court for permission to travel to the UK to terminate her pregnancy, having recently discovered that her foetus suffers from anencephaly and will not survive for more than 2-3 days after birth." Here is a brief news report from RTE, dated May 1:
The High Court is due to hear on Thursday a challenge by a 17-year-old girl against a Health Service Executive decision to stop her leaving the State for an abortion. The 17-year-old, who has been told that her child cannot survive outside the womb, has been in the care of the HSE since February. Known as Ms D, she is four months pregnant and wants to travel to the UK for a termination. The decision was made when the teenager discovered the baby she is carrying is suffering from a condition which is causing its brain not to develop properly. She has been told that the child will only live a very short time, if at all, after its born. The HSE is refusing to allow her to leave the country. MS D is challenging the court order placing her in care, in so far as it restricts her leaving the State. She is also asking the High Court to overrule the HSE's decision to ask gardaí to stop her. And she is challenging the HSE's decision to refuse to let her travel to terminate the pregnancy unless there was a risk she would commit suicide.
Lawyers for the 17-year-old girl told the High Court today it was of great importance this case be heard as speedily as possible. Gerard Durkan, senior counsel for the HSE, said the HSE was anxious that whatever course of action best secured the girl's welfare should be taken, having regard to legal constraints. Donal O'Donnell, senior counsel for the Attorney General said it was the AG's position that the HSE had no power to direct the gardaí to restrain someone who is the subject of a care order from travelling abroad. He said gardaí did not have the power to stop someone travelling simply because they were the subject of a care order and he said it was the AG's position that the district court order relating to Ms D did not stop her travelling anywhere. In response to a request from the HSE to have the girl psychiatrically examined, the court was told that she was not suicidal. She had said it 'would kill her' to go through with the pregnancy but she said this meant that it would be hugely difficult for her.
A full hearing of the case will take place on Thursday.
Should we want the law to ban abortions in cases like this? Why/why not?
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