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, June 21, 2007

Traffic Laws and the Immigration Question

By Rob Vischer

An MoJ reader comments on the Vatican's new Guidelines for the Pastoral Care of the Road:

It seems to me that the document restates traditional Catholic teaching on obedience to the positive laws, but I wonder whether that teaching takes proper account of the difference between civil and criminal codes, and more specifically the functionality of laws designed to encourage rather than to coerce absolutely.  One might analogize to laws which would tax pollution, permitting companies to buy the right to pollute from cleaner factories (thus creating an economic incentive to build cleaner factories).  On the one hand, one could say that pollution is immoral and wrong in all cases; but on the other hand, we all pollute somewhat (esp. if CO2 is pollution), and that type of law would shift from a punitive approach to an incentive approach. 

It seems to me that speed limits for automobiles are functionally similar.  We know that we can go a little above the speed limit safely, but the risk of substantial fines deters us from speeding very much.  It is quite possible to imagine a detector placed in the license plate, with monitors around the interstate highways of a state, so that the state could calculate the driver's rate of speed all the time, and fine you accordingly, sending a bill to your address every month (or perhaps automatically deducting it from your bank account).  If we conceptualize speeding in this way, I wonder whether it's fair to say that any excess of the speed limit is per se wrong.

Of course, the circumstance of someone driving recklessly, or unsafely, or drunk, is something else.  That seems to be a direct violation of the obligation of charity, whereas the simple violation of a speed limit is only a violation against charity inasmuch as the positive law requires a limit which is safe.  (E.g., Congress used to require a 55mph speed limit even on I-80 through Nebraska.) I suppose following the speed limit would be a prophylactic protection, if I might use that phrase, of the obligation of charity, but not a direct requirement.

I analogize to immigration, because it seems to me that immigration violations are substantially similar to speeding violations.  They violate the positive law, but in many if not most cases, would implicate immorality only to the extent that it's immoral to violate the positive law.  Of course, the main question with regard to illegal immigration is whether the punishment fits the crime; but it seems to me that the moral status of the violation may be relevant to that consideration.

Bush and Cardinal Zen

By Rick Garnett

One usually does not associate "Zen" with "President Bush," but . . . .   A friend and MOJ-reader passes on this Robert Novak column describing the recent meeting between the President and Hong Kong's Cardinal Zen.

In Hong Kong, Zen enjoys more freedom to speak out than do his fellow bishops in China proper and has become known as the spiritual voice of China's beleaguered democracy movement. Increasingly since Hong Kong was handed over to Beijing by the British government in 1997, he has been a voice calling for both religious freedom and democracy in China. Consequently, the China desk at the State Department in Washington and the U.S. Embassy in Beijing contended that, for the sake of Sino-American relations, it would be a bad idea for the president to invite the cardinal. So did some of Zen's fellow cardinals.

So, why did the president invite the cardinal? The fact that no news of the session leaked out for two weeks indicates this was no political stunt to revive Bush's anemic poll ratings. The president got divided counsel from his advisers regarding its impact on China's rulers. As he nears the end of a troubled presidency, Bush as a man of faith places the plight of the religious in unfree countries at the top of his agenda. . . .

Bush asked Zen whether he was the "bishop of all China." Replying that his diocese was just Hong Kong, Zen told Bush of the plight of Catholics in China, including five imprisoned bishops. The cardinal is reported by sources close to him to have left the White House energized and inspired. George W. Bush is at a low point among his fellow citizens, but he is still a major figure for Catholics in China who look to him as a clarion of freedom.

For more on the Church in China, here is Adam Minter's recent profile, in Atlantic Monthly, on China's Bishop Jin Luxian, who is aligned with the "Chinese Patriotic Association."  And, here is a recent op-ed of mine, from USA Today -- about which Mr. Minter expressed strong disapproval in private correspondence, on the ground that it was too critical of, and unfair to, the "Chinese Patriotic Association" and those who are involved with it -- about religious freedom in China.  And, here are Melissa Rogers' thoughts about my essay.

Executive Order on stem-cell research

By Rick Garnett

As MOJ readers probably know, the other day Congress passed -- and the President immediately vetoed -- a bill that would have expanded federal funding for human-embryo-destroying research.  (Perhaps now the Congress will turn to the Seamless Garment agenda, and -- say -- ban the federal death-penalty?)  Here is a link to the President's executive order, issued yesterday (but almost certainly destined to be overlooked in the press coverage of the issue) expanding federal support of research on pluripotent stem cells not derived through the destruction of human embryos.

Torture polls

By Rick Garnett

Thanks to Elizabeth Brown for sending, and to Steve S., for posting, in response to my request, the NCR polls regarding Catholics' and others' views on the permissibility of using torture.  I agree, obviously, with Steve and Elizabeth that those numbers are extremely disturbing, and -- like the numbers indicating that many Catholics support abortion rights, or oppose choice-in-education -- reflect a dramatic (and, to me, demoralizing and surprising) failure on many Catholics' part to understand the implications and demands of the Faith.  Of course, I join Elizabeth in rejecting Linda Chavez's observation that "[o]ur good ends really do justify use of evil means against this enemy because, well, this enemy is different."  (In my view, "this enemy is different" and very dangerous, but that difference does not change or undermine the moral prohibition against torture.)  And, I agree that Sen. McCain's clear statements on and against torture are admirable.

Elizabeth Brown on torture

By Steve Shiffrin

Elizabeth Brown wrote to Rick and I as follows:

The National Catholic Reporter published this article on the support of
torture by American Catholics here:
http://ncronline.org/NCR_Online/archives2/2006a/032406/032406h.htm
<http://ncronline.org/NCR_Online/archives2/2006a/032406/032406h.htm>
According to this survey, over 50% of American Catholics would support
torture sometimes or often.
 
As for the question asking if one supports "torture in order to gain
important information", that is almost always the justification for torture
despite the fact that there is no evidence that the information provided due
to torture is reliable.  Regarding the lack of evidence that harsh
interrogation techniques produce reliable intelligence, see Washington Post
article describing the 374 page report by the Intelligence Science Board,
which was commissioned by the Pentagon, here:
http://www.washingtonpost.com/wp-dyn/content/article/2007/01/15/AR2007011501
204.html
<http://www.washingtonpost.com/wp-dyn/content/article/2007/01/15/AR200701150
1204.html>    The question did not present the hypo of the ticking bomb.
 
Why do so many Catholics support torture?  The survey doesn't say but
perhaps they agree with the reasons that conservative Catholic Linda Chavez
outlined when she wrote in support of torture.  Crisis Magazine in its March
2005 issue (http://www.crisismagazine.com/march2005/feature2.htm
<http://www.crisismagazine.com/march2005/feature2.htm> ) described the
written comments of Linda Chavez:

"But Chavez doesn't raise that question. Instead she asks, "[I]f such
methods are 'torture,' is the United States justified in using them anyway?"


Mark that: Even if it is torture, can we do it anyway? 

For a Catholic, there is no debate on that question, for the Church has
answered it definitively. Gaudium et Spes (no. 27) condemns torture
categorically: . . .

Chavez, however, does not consult the teaching of the Church. Instead, she
moves on to a recitation of various horrors perpetrated by the murderous
thugs of radical Islam and declares:

'[W]e are forced into debating the moral parameters of torture because of
the very nature of our current enemy. The United States is not at war with a
conventional army, but with men whose aim is to kill innocent civilians in
the most horrific manner possible.' 

Note the shift in the argument. At the beginning of the article, we were not
debating the moral parameters of torture at all. That's because there's
nothing to debate. Torture is "intrinsically evil." Period. We were,
initially, going to debate what constitutes torture. But now, Chavez argues,
in effect, "Our good ends really do justify use of evil means against this
enemy because, well, this enemy is different." How, precisely, the current
enemy is so different from past enemies-Nazi, North Korean, Japanese, and
Viet Cong torturers and murderers-that torture is now justified, Chavez does
not say."

The International Red Cross has classified what the US has done to enemy
combatants at Guantanamo as torture.  So I am not sure that it is
unreasonable to interpret Romney's statement that he wants to double
Guantanamo and that he supports "enhanced interrogation techniques" (the
ones that the Red Cross classified as torture) as indicating that he
supports methods that the rest of the world, including the Catholic Church,
considers torture.  His statement certainly seems to be playing to the
Americans, including Catholics, who crave "tough measures" on security
grounds.  See Washington Post article here:
http://www.washingtonpost.com/wp-dyn/content/article/2007/05/16/AR2007051602
412.html
<http://www.washingtonpost.com/wp-dyn/content/article/2007/05/16/AR200705160
2412.html>  and column by Helen Thomas in the Salt Lake Tribune here:
http://www.sltrib.com/ci_5970857 <http://www.sltrib.com/ci_5970857>  
 
The only GOP candidate who has clearly indicated that he does not support
torture is Senator McCain.  This is one of the many things that I admire
about McCain.
 
My father and both my grandfathers were colonels in the US Army (West Point
Classes of 1946, 1923 and 1903).  Both my father and my grandfather Buckley
spoke out against allowing US personnel to use torture in interrogations.
My grandfather Buckley was a POW in WWII.  (My grandfather Brown was a POW
in WWI and died in 1962 before I was born.)
 
There are ways of effectively interrogating prisoners of war and others
without resorting to the techniques authorized by the Bush Administration.
Many US military lawyers and officers objected to the move by the Bush
Administration to expand the range of interrogation techniques because the
techniques violated international law, they were not an effective means of
gaining reliable intelligence, and they would encourage others to torture
captured US military personnel.

Torture and Catholics

By Steve Shiffrin

The National Catholic Reporter of March 24, 2006 http://natcath.org/NCR_Online/archives2/2006a/032406/032406h.htm reports on a

Pew Center survey:

   
 

Survey by

Pew Research Center

      for the People & the Press Oct. 12-24, 2005; nationwide survey conducted   among 2,006 adults

 
 

Do you   think the use of torture against suspected terrorists in order to gain   important information can often be justified, sometimes be justified, rarely   be justified, or never be justified?

 

 

                                   
 

  		 

Total public

  		 

Total Catholic

 
 

Often
  Sometimes
  Rarely
  Never
  Don’t know/refused

  		 

15%
  31%
  17%
  32%
  5%

  		 

21%
  35%
  16%
  26%
  4%

 
 

  		 

White Protestant

  		 

White evangelical

 
 

Often
  Sometimes
  Rarely
  Never
  Don’t know/refused

  		 

15%
  34%
  16%
  31%
  4%

  		 

13%
  36%
  16%
  31%
  4%

 
 

  		 

Secular

  		 

 
 

Often
  Sometimes
  Rarely
  Never
  Don’t know/refused

  		 

10%
  25%
  16%
  41%
  4%

  		 

 

 

Tom Carney writing for NCR states: “But the portion of Catholics who justify torture is even higher, according to the survey [than the general public]. Twenty-one percent of Catholics surveyed said it is “often” justified and 35 percent said it is “sometimes” justified. Another 16 percent said it is “rarely” justified, meaning that nearly three of four Catholics justify it under some circumstances. Four percent of Catholics “didn’t know” or refused to answer and only 26 percent said it is “never” justified, which is the official teaching of the church.”

I think it entirely possible that George Bush won the last election because people felt safer under him than they would have under John Kerry. A part of that perception of safety was that Bush was willing to torture. Note that John Kerry did not raise torture as an election issue, a likely sign that he knew it would have cost him votes. In other words, torture was a plus for George Bush. If you believe in using the Eucharist as a stick (I do not), I do not see why a politician’s endorsement of torture should not qualify as specially ignominious.

Catholics, torture, voting, communion

By Rick Garnett

With respect to the issues raised by Elizabeth Brown, and posted by Steve S. . . .   Elizabeth asks:

[W]hy are the Catholic bishops and others not making the case that to support a politician precisely because he or she will support the use of torture . . . would place the Catholic outside of Communion with the Church and they should not present themselves to receive the Eucharist.

I would have thought it was noncontroversially the case that a Catholic may not "support a politician precisely because he or she will support the use of torture[.]"  (If only it were so obvious to our fellow citizens that a Catholic "may not support a politician precisely [because he or she will support abortion rights]"!)  I wonder, though -- is there really any evidence that any meaningful number of Catholics (or, for that matter, of Americans) would "support a politicians precisely because he or she will support the use of torture" (my italics), keeping in mind that to support, say, detention of suspected enemy combatants is not necessarily to support "tortur[ing]" them?  Elizabeth says that "some polls indicate that a significant number of American Catholics support the use of torture by our government."  Can anyone provide links to these polls indicating that, in fact, "a significant number of American Catholics support the use of [what they regard as] torture by our government" (in anything other than the mythical "ticking time-bomb" hypothetical)?

(To be clear:  I agree with Elizabeth that the recent display of "tougher-than-thou-on-detainees" by the GOP presidential candidates was unedifying, and I share what I take to be her discomfort with the reach of some of the Administration's executive-power claims.  And -- this should go without saying, but I'll say it anyway -- that I regard "torture", even of the worst, and even in the most desperate circumstances, as immoral.  It should also go without saying, though, that to believe detained enemy combatants need not be interrogated, charged, and tried in the manner employed in American criminal trials, or that the Executive has the power to identify and detain such combatants, is not to endorse "torture.")

UPDATE:  On the other hand, read this post, at Vox Nova, on torture and Justice Scalia's recent remarks about "absolutes" and Jack Bauer.  (The post includes a link to a survey -- the results of which seem troubling -- of members of the armed services in Iraq regarding treatment of non-combatants and interrogation.)

Wednesday, June 20, 2007

Wrongful Life Suits

By Susan Stabile

I've always been troubled by wrongful life lawsuits and their "better off dead" premise.  Victoria Springer argues in a paper recently posted on SSRN that "[s]ocial psychological models of health behavior and evolutionary theory, including inclusive fitness, parental investment, the theory of reasoned action, and the theory of planned behavior" all support "the claim that a child, due to its severe defects, could be 'better off dead' and that the mother would have willingly terminated the pregnancy if full information was disclosed."  I suppose we can take some solace in the fact that the author admits that "not all disabled individuals are lesser evolutionary beings or that any impaired ability to reproduce invevitably or irreparably condemns an individual to a 'negative' fitness score," (important because "the only way to balance the negative fitness score [is] to take one's self out of the equation entirely").  The article can be accessed here.

Repeat Abortions

By Susan Stabile

According to recent report of the Guttmacher Institute, about half of all U.S. women having an abortion have had a previous abortion.  The report also notes that the decline in the number of U.S. abortions has stalled and that "at the current rate, about one-third of all U.S. women will have had an abortion by age 45."  The characteristics of women having first-time and repeat abortions is fairly similar (including the fact that most were using some form of contraception at the time), except that women having a repeat abortion are generally older and more likely to already have had a child.  The report concludes that the key to reducing unintended pregnancies and fewer abortions is more effective contraceptive use.  (10 Guttmacher Policy Review 8 (2007)). 

Elizabeth Brown on Communion

By Steve Shiffrin

Elizabeth Brown wrote the follwing to me in response to my post on access to the Eucharist: On the Catholic politicians, Communion and voting postings that you and
others have made to MOJ, I am surprised that no one has mentioned a couple
of issues:

1.  Giuliani and Communion:  As a divorced Catholic who is remarried, he is
barred from receiving Communion on the grounds that he is committing
adultery.  So the "threat" of withholding Communion because of his views on
abortion is somewhat of a paper tiger.

2.  Politicians and Torture:  The US Government under Bush has and continues
to engage in torture.  Some of the Republican politicians, like Romney and
Giuliani, are making even tougher security measures hallmarks of their
campaigns.  Romney would "double" Guantanuamo.  Since torture like abortion
is a non-negotiable prohibition, why are the Catholic bishops and others not
making the case that to support a politician precisely because he or she
will support the use of torture (allegedly to protect the US, although
torture NEVER has been proven to provide any reliable, actionable
intelligence) would place the Catholic outside of Communion with the Church
and they should not present themselves to receive the Eucharist.  I know
that some polls indicate that a significant number of American Catholics
support the use of torture by our government.  So if using Presidential
elections as a teaching moment on abortion is appropriate (as some clearly
think it is), why are the same people not using them as teaching moments on
torture as well?

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