Earlier this week, I made the trip to New York City for the Institute on Religion and Public Life's annual Erasmus Lecture, which was delivered this year by MOJ-friend Prof. Robert George. The lecture -- presented to a standing-room-only, overflow crowd -- was called "On the Purposes of Law and Government: First Principles and Contemporary Challenges."
The lecture will be published, I'm told, later in First Things. In the meantime, though . . . Here are the opening few paragraphs:
The obligations and justifying purposes of law and government are to protect public health, safety, and morals, and to advance the general welfare -- including, preeminently, protecting people's fundamental rights and basic liberties.
Stop right there. One can hear already the Libertarian's objection: "Hold on! Isn't there a train-wreck of a clash coming between the purpose of protecting 'public . . . morals' and 'protecting . . . basic liberties'"?
At first blush, this classic formulation . . . of the purposes and powers of government seems to accord public authority vast and sweeping powers. Yet, in truth, the general welfare (or common good) requires that government be limited. Although government's responsibility is primary in respect of defending the nation from attack and subversions, protecting people from physical assaults and various other forms of depredation, and maintaining public order, its role is otherwise subsidiary: to support the work of the families, religious communities, and other institutions of civil society that shoulder the primary burden of forming upright and decent citizens, caring for those in need, encouraging people to meet their responsibilities to one another, and discouraging them from harming themselves or others.
Governmental respect for individual freedom and the autonomy of nongovernmental spheres of authority is, then, a requirement of political morality.
To say this (i.e., what was just said) is not to go over entirely (or even very much) to the libertarian view:
The strict libertarian position . . . goes much too far in depriving government of even its subsidiary role. It underestimates the importance of maintaining a reasonably healthy moral ecology, especially for the rearing of children, and it fails to appreciate the legitimate, albeit once again limited, role of law and government in maintaining such an ecology.
So, in just these few paragraphs, we see flagged at least two points that, I think, will need to be at the heart of any "Catholic legal theory": First, a just government (i.e., one that is appropriatedly directed to the common good, properly understood) is a constitutionally limited (though not a libertarian) government. Second, the "common good" consists, among other things, of a "moral ecology" conducive to human flourishing, including child rearing, and even an appropriately limited government must attend to the health of this moral ecology.
Thanks to Rick for posting about the Utah school-choice referendum next Tuesday. I spoke last week at a very interesting conference, sponsored by the International Center for Law and Religion Studies at Brigham Young University, about the legal and policy aspects of the Utah program, which if it survives the referendum would be the nation's first universal voucher program -- i.e. aimed statewide rather than at failing public-school districts. Although this feature makes the program less focused on the neediest families, it remains oriented toward the neediest, with the voucher amount graduated from $3,000 down to $500 as the family's income rises. Ideally I would prefer a program focused even more on the poor, but this proposal still would do a lot for them and for the causes of religious and educational freedom. The conference featured a great set of exchanges among political scientists on the empirical evidence concerning school choice's effect on educational performance (positive on a number of indicators although no effect on some), parental satisfaction (unquestionably positive), and civic involvement (likely to be good given the overall good record of private schools on such factors).
Opponents of the program argued among other things that the $3,000 maximum would not nearly cover the tuition at many private schools, including several of the major Catholic schools (there are relatively few Catholic schools in Utah). But the issue is always marginal effect, especially given the Church's proven willingness to subsidize the education of needy children. And a friend who I saw on the visit, who teaches at one of the Catholic schools with a tuition around $7,000, noted that a number of modest-income kids already attend that school largely on scholarship aid and that more could be accepted if the state kicked in $3,000 per kid.
In my own presentation, I argued that although a universal school-choice program might be less compelling than one aimed at failing schools as a policy matter -- although I think both are still justified -- it actually should be even less subject to Establishment Clause challenge. The Supreme Court's theory in approving vouchers in Zelman v. Simmons-Harris (2002) was that if benefits are available to families on neutral terms, their use at a religious school is the family's own free choice, as long as there are "genuine secular alternatives." In Zelman there was some dispute about the existence of genuine alternatives, given the horrible performance of the regular Cleveland public schools -- although the Court (rightly, I've argued) found more than sufficient alternatives in charter and magnet schools and public-school tutoring programs along with secular private schools. Thus even in Zelman it was ultiamtely unpersuasive to claim that parents were pushed into religious schools (ones they might otherwise oppose) by the combination of vouchers and a failing public school system, since there were reforms in the public schools. But any such claim of steering into religious schools is even weaker in the large majority of applications of a universal school-choice program, not limited to failing public-school districts -- since in most applications the regular public schools will be adequate and will unquestionably constitute genuine alternatives.
Tom B.
