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.

Tuesday, May 6, 2008

I love Catholic schools

Here's my daughter's second-grade class, just after their First Communion:

Does Science make belief in God obsolete?

A discussion.  (HT:  Andrew Sullivan).  Christoph Cardinal Schonborn -- one of the dozen or so contributors -- writes:

In all our scientistic "knowledge" of the inner workings of things, and our technology-based comforts and distractions, there seems to be no place for the still, small voice of God. In that practical and existential sense, science and technology seem to have pushed belief in God toward obsolescence. Or have they?

In our innermost being, we moderns remain unsatisfied. Sooner or later we face an existential crisis, and recognize in our lives something broken, disordered, in need of redemption. The fact that we can recognize disorder, brokenness, and sin means that they occur within a larger framework of order, beauty, and goodness, or else in principle we could not recognize them as such. Yet brokenness and disorder are painfully present, and the human soul by its nature seeks something more, a deeper happiness, a lasting good. Consideration of the order and beauty in nature can lead us to a Something, the "god of the philosophers," but consideration of our incompleteness leads us beyond, in search of a Someone who is the Good of us all. Science will never make that quest obsolete.

Religion in Politics and CST's "Preferential Option for the Poor"

Theology in Public Reason and Legal Discourse: A Case for the Preferential Option for the Poor

RUSSELL POWELL
Seattle University School of Law

March 20, 2008
Abstract:     
There is a strange disconnect between the formal understanding of the separation of religion from government in the United States and the almost ubiquitous use of religious language in political discourse, not to mention the web of complicated religious motivations that sit on or just below the surface of policy debates. This paper presents an argument for the relevance of the principle of the "preferential option for the poor" from Catholic social thought in public reason and legal discourse in order to explore the possible advantages of making the veil between religion and the secular state more permeable. As a case study, it proposes dialogue between Catholicism and complementary secular thought, including standpoint theory, outsider methodology, and law and economics to explore possibilities for more effectively ensuring justice for the poor and marginalized. (An earlier version of this article was presented at Law, Culture and the Humanities at Georgetown Law Center in 2007.)
 
 

Suggested Citation

Powell, Russell, "Theology in Public Reason and Legal Discourse: A Case for the Preferential Option for the Poor" (March 20, 2008). Available at SSRN: http://ssrn.com/abstract=1111713

Monday, May 5, 2008

Teresa Collett responds to Doug Kmiec on Obama and Abortion

MOJ friend, Professor Teresa Collett writes:

Doug Kmiec has been a good friend to me for many years, often giving wise
counsel.  Therefore I am reluctant to publicly contradict him, yet
conscience compels me to do so in light of his encouragement of Catholic
voters to support Senator Obama.  In doing so, Doug suggests that Catholics
ignore Senator Obama's clear statements and record regarding abortion.

Senator Obama opposes the federal partial-birth abortion ban that was upheld
by the Supreme Court in Gonzales v. Carhart, and has announced his desire to
pass the Freedom of Choice Act, a proposed law that would largely enact Roe
v. Wade as a matter of federal statutory law.  Even Senator Clinton, a
staunch defender of abortion, has merely stated that she "will sign" the
Freedom of Choice Act, and Senator McCain, if elected president, would veto
such legislation.

It seems that Doug has forgotten the lessons of presidential politics
learned in the process of passing the partial-birth abortion ban.  President
Clinton repeatedly vetoed federal partial-birth abortion bans,
notwithstanding clear majorities in both legislative chambers supporting the
bill.  In contrast, President George W. Bush proudly signed the ban when
presented to him.

Unlike Doug, Senator Obama sees the potential to appoint pro-Roe Supreme
Court justices as a major issue in the election, and seeks to appeal to
voters on that basis.  "With one more vacancy on the Supreme Court, we could
be looking at a majority hostile to a women's fundamental right to choose
for the first time since Roe v. Wade. The next president may be asked to
nominate that Supreme Court justice. That is what is at stake in this
election."  Obama, Barack, Obama Statement on the 35th anniversary of Roe v.
Wade
(Jan. 22, 2008).

Doug suggests that Catholics should disregard the abortion issue, since he
views it insufficient reason to vote for a President, who will merely
appoint justices likely to return abortion to the political process, the
position of Senator McCain.  At least four states - Arkansas, Louisiana,
North Dakota and South Dakota - have laws making abortion largely illegal as
soon as federal policy permits. Two more states - Illinois, and Missouri -
have passed laws declaring the state's intention to criminalize abortion.
Seven additional states have prohibitions that would be immediately
effective. While protecting the unborn in every state is certainly
preferable to protecting them only in thirteen states, it is irrational to
argue that we should not seek to protect unborn children in thirteen states
since we can not protect them the other thirty-seven states.

Also, it is important to remember the other presidential powers impacting
the practice of abortion.  Executive orders have insured adherence to (or
disregard of) the "Mexico City Policy," requiring nongovernmental
organizations to agree as a condition of their receipt of Federal funds that
such organizations would neither perform nor actively promote abortion.
Executive orders have insured that abortions are not performed on US
military bases, and have insured that federal family planning funds are not
used for abortion counseling.

The president appoints his or her cabinet members who, as members of the
executive branch, exercise substantial influence on federal policy regarding
abortion. The Attorney General of the United States is charged with
defending the laws of the United States from constitutional challenge.  A
lukewarm defense of laws seeking to restrict or regulate abortion can be
deadly both to the laws and those the laws are designed to protect. The
Secretary of Health and Human Services directs the Centers for Disease
Control and Prevention, which accumulates information regarding the
incidence and effects of abortion.  The Secretary of State advises the
president and represents the United States in matters related to foreign
affairs, including the impact of proposed treaties and actions within the
United Nations regarding the international law of abortion. These are just a
sampling of the decisions that the president and members of the executive
branch make, which impact the prevalence of abortion in our country and the
world.

I confess that I am disappointed by Doug's professed confidence that Senator
Obama is conflicted on the issue of abortion in light of the senator's clear
statement and legislative record.  None of us have the ability to judge the
secret yearnings of any person's heart, yet our moral obligation to exercise
practical wisdom in discerning a candidate's future actions, and vote
accordingly, requires Catholics to accept Senator Obama's statements and
actions at face value.  As the United States Bishops remind faithful
Catholics, "A Catholic cannot vote for a candidate who takes a position in
favor of an intrinsic evil, such as abortion or racism, if the voter's
intent is to support that position. In such cases a Catholic would be guilty
of formal cooperation in grave evil."  I fail to see adequate countervailing
moral considerations that would suggest that a vote for Senator Obama is
anything other than a vote for continued judicial protection of abortion.

What Does it Mean to be Poor?

It is hard for those of us with sufficient funds to meet our basic (and not so basic) needs to appreciate what it is like to live in poverty.  "Being poor is a heater in only one room of the house." "Being poor is picking the 10 cent ramen instead of the 12 cent reman because that's two extra packages for every dollar."  "Being poor is people surprised to discover you're not actually lazy."  "Being poor is people who have never been poor wondering why you choose to be so."

These are quotes taken from the flyer for the 2007 Poverty Challenge currently underway in Buffalo, NY, sponsored by the Homeless Alliance of Greater Buffalo.  The challenge is to live for several days on a poverty line budget.  For as single person, that means $9.25/day after factoring in housing (based on the cost of housing in Buffalo) and the cost of clothing, before reductions for costs such as transportation.  Even without such deductions, living on $9.25/day is no easy task.  The challenge also invites people to think about the perceptions they have heard about those who are poor and to reconsider those perceptions based on their experience.

This is not an exercise in "playing poor," but rather is an effort to help people understand "how poverty affects the day-to-day life” of so many people.  The hope is that if people "learn what it means [they will] demand that it ends."

The website for the Homeless Alliance contains both the flyer and the guide to the challenge. A news article talking about the challenge can be found here.

UPDATE: Prompted by the Homeless Alliance challenge literature, this morning I posted some further reflections on how we see the poor here.

Peggy Noonan on Jeremiah Wright

[From The Opinionator, today, at nytimes.com.  You can follow the link to Noonan's piece.]

The Wall Street Journal’s Peggy Noonan can’t get fired up about Jeremiah Wright. Of Wright’s remarks, she writes, “[I]t doesn’t get my blood up. It doesn’t hurt my heart. It doesn’t make me feel I need to defend my country. Because I don’t see it as attacked, only criticized in a way that is not persuasive.”

Doug Kmiec Explains (Again) His Support for Obama


Doug Kmiec Reaffirms Endorsing Sen. Barack Obama

By Douglas W. Kmiec

5/3/2008

MALIBU, CA (Catholic Online) - In the last few weeks, I have been repeatedly asked if my endorsement of Senator Obama stands.

To some of my fellow Catholics, Senator Obama's answers on abortion make him categorically unacceptable.I understand that view, respect it, but find it prudentially the second-best answer in 2008.

Not because Senator Obama's position on abortion is mine; it is not. Not because I don't believe Senator Obama could improve the articulation of his position; he could, but because I believe that my faith calls upon me at this time to focus on new efforts and untried paths to reduce abortion practice in America.

Senator Obama’s emphasis on personal responsibility, rather than legal bickering over potential Supreme Court nominations in my judgment, best moves this issue forward.

The Republican Party has had a better claim to be pro-life because of words in its platform supporting the overruling of Roe v. Wade. Roe is bad constitutional law, because it's not based on the Constitution or any tradition or custom implicit within its terms.

Yet overturning the decision does little other than return the issue to the states. Conservative justice and fellow Catholic Antonin Scalia has pointed out that following Roe’s hypothetical demise, if the states want abortion thereafter all they have to do is pass a law in favor of it.

As a matter of constitutional legal theory, I believe Justice Scalia is entirely wrong and that Roe is flawed not just for its displacement of state authority, but more fundamentally, for its disregard of the natural law presuppositions in the Declaration of Independence.

As I see it, the “self-evident truths” of the Declaration have interpretative significance for the meaning of “life” and “person” in the constitutional text -- and that meaning makes life unalienable, which means each life from conception is unique and worthy of constitutional protection.

Were Senator McCain to be of the same mind, he would be pro-life. As it is, he and the GOP are pro-federalism, which is not a bad thing, but frankly, at this late date, insufficient.

Thus, as I see it, it is a choice between two less than sufficient courses:

(a) the continuation of an effort to appoint men and women to the Court who are thought willing to overturn Roe through divisive confirmation proceedings that undermine respect for law and understate the significance of non-abortion issues in a judicial candidate’s evaluation; or

(b) working with a new president who honestly concedes the abortion decision poses serious moral issues which he argues can only be fully and successfully resolved by the mother facing it with the primary obligation of the community seeing to it that she is as well informed as possible in the making of it.

It is a prudential judgment which course is more protective of life. Had three Republican presidents over 20 years in office not tried course (a), it might be a close question. As it is, we know that following course (a) has met with little success, and again, even if fully successful will do little more than bolster the possibility that some number of states will make abortion legally less available

I do not understand Senator Obama to be pro-abortion, though if we had an extended conversation on this topic, I would ask him to more carefully parse the topic. Asked at the recent faith forum at Messiah College whether he believed life began at conception, Obama said he has not "come to a firm resolution" on the question.

That's a mistake that any geneticist could clear up for him. Openly, he posited that he thought it is “very hard to know . . . when life begins. Is it when a cell separates? Is it when the soul stirs? So I don't presume to know the answer to that question.”

There’s some humility in this answer, but it also mixes science and theology and tangles up life and personhood to boot. In fairness, however, it typifies the larger public confusion. Most importantly, it is an answer free of guile or political calculation. “What I [do] know,” said the Senator, “is that there is something extraordinarily powerful about potential life and that has a moral weight to it . . . .”

Indeed, it does, and he accompanied his candid observation with a critique of himself and his party. It is a “mistake,” Obama said “to try to tamp down the moral dimension to abortion,” for do to so understates that it is “a wrenching choice for anybody to think about." On Meet the Press some time ago, he stressed the importance of involving the clergy in the counsel of a mother.

Obama briefly mentioned adoption as a means of reducing abortions at the faith forum, and I encourage him to speak more at length about that sound, practical affirmation of life. But where he looks for the greatest agreement and greatest opportunity to reduce the number of abortions “is on the idea of reducing unwanted pregnancies because, he reasons, “if we can reduce unwanted pregnancies, then it’s much less likely that people resort to abortion.

The way to do that is to encourage young people and older people, people of child-bearing years, to act responsibly. Part of acting responsibly – I’ve got two daughters,” Obama proudly points out – “part of my job as a parent is to communicate to them that sex isn’t casual and that it’s something that “should be treated with reverence.”

As a Catholic my instruction to my daughters will likely be different than my Jewish or Protestant or Islamic or non-believing friends. Like Senator Obama, “I’m all for education for our young people, encouraging abstinence until marriage.”

Unlike Senator Obama, as a matter of faith, artificial contraception is off my list, and I have carefully discussed with my daughters why a contraceptive practice that the larger culture accepts subtly undermines that which ought not be divided; namely, the unitive and procreative aspects of human love within marriage.

Senator Obama supports a wider range of age-appropriate contraceptive information to prevent unmarried, teen pregnancies, and since he would be proposing legislation for the entire community and not merely my household or people of my faith, certainly one can understand that perspective even if one might argue with it or insist upon appropriate religious exemption in a public school setting.

The so-called “95-10” legislative proposal (proposing to reduce abortion by 95% over 10 years largely by educative means) seems well-suited to the Senator’s perspective, and I have encouraged him to embrace it in principle. I hope he does, but it’s not an endorsement breaker so long as he is true to himself and encouraging of personal responsibility, rather than the codification of the abortion mentality which some in the extreme wing of his party advocate.

This much I know: 

If it’s a choice between giving a boost to the work of my fellow parishioners who week after week in thinly-funded, crisis pregnancy centers, open their minds and their hearts and often their homes to pregnant women (and Obama has spoken approvingly of faith-based efforts) and a Supreme Court Justice to be named later who may or may not toss the issue back to the states, I think I know which course is more effectively choosing life.

As anyone who's ever had a conversation with a pregnant woman thinking about abortion knows, good, evenhanded information and genuine empathy and love save more children than hypothetical legal limits – which, as best as I can tell, have saved: well, zero.

Of course, there are many more reasons to affirm my original endorsement of the Senator, including his willingness to:

•Transcend the politics of division – so well illustrated on any given day by the unfortunately base tactics of the Clinton or McCain campaigns (see the recent GOP ad in North Carolina once again dredging up Reverend Wright)

•Commit us toward a course of environmental stewardship that will not be dependent upon fossil fuel

•Focus tax and health policy reform in favor of the average working family and the poor

•Reaffirm an American foreign policy respectful of international standard

•And end an unjust, preemptive war – another obvious life issue -- that deprives families of some of our most self-sacrificing yet often least advantaged young men and women and drains our economy in a 3 trillion dollar fashion, crippling our practical ability to be the force for human good that Americans want their country to be.

[Chair & Professor of Constitutional Law, Pepperdine University; fmr Constitutional Legal Counsel to Presidents Reagan and George H.W. Bush and fmr. Dean & St. Thomas More Professor of Law, The Catholic University of America; fmr Director, The White Center on Law & Government, University of Notre Dame, 1980-99.]

Rights in Catholic Social Thought

Vox Nova has a post today discussing of the difference between the concept of rights in Catholic thought and the concept of rights in American political discourse.  The difference largly is a function of the extent to which Catholic thougth views the common good as limiting and defining rights, something "incomprehensible" from the secular perspective, which wonders what is the purpose of a right if it is limited by the common good.

"The answer, I think, lies in the differnt role that rights play in Catholic Social Thought.  Rights, in Catholic Social teaching, serve as a means of orienting our thinking about questions of social policy.  To say, in Catholic Social Thought, that something is a right is to say that it is a constitutive element of the Common Good."   So, for example, when the Church declares that there is a right to basic health care, what She is saying is that access to basic health care is one of the conditions of social life which allows access to human flourishing and fulfillment, and that achieving that right should be a central goal of social policy.  At the same time, however, this right is not seen as absolute, and may have to give way to other, equally pressing elements of the Common Good."

I think this accurately describes how the common good may limit rights from a Catholic perspective (although it is hard for me to imaging what pressing element of the common good would force us to abandon the right to basic health care), but I'm less sure whether I think this adequately explains the difference between rights from a Catholic perspecitve and rights from a secular perspective (which, are not absolute either).

Rich on the Obama Double-Standard

Frank Rich points towards a double standard in the media’s treatment of Wright:

None of this is to say that two wacky white preachers make a Wright right. It is entirely fair for any voter to weigh Mr. Obama’s long relationship with his pastor in assessing his fitness for office. It is also fair to weigh Mr. Obama’s judgment in handling this personal and political crisis as it has repeatedly boiled over. But whatever that verdict, it is disingenuous to pretend that there isn’t a double standard operating here. If we’re to judge black candidates on their most controversial associates — and how quickly, sternly and completely they disown them — we must judge white politicians by the same yardstick.

I think this is about right. I actually think McCain’s search for the Hagee endorsement is worse than Obama staying in his church despite the views of his pastor. A person remains in a congregation for a number of reasons, the pastor being just one of them. Churches are, after all (or, at least, for most of us), communities of faith, and not just Sunday entertainment provided by the pastor. Someone might stay in a church because of its commitment to service, its connections to a particular neighborhood or ethnic group, bonds with fellow parishioners, etc.  Indeed, those who casually say that Obama should have left his church reveal to me a fairly shallow approach towards life in a church. Perhaps I say this because I’m Catholic. By necessity, we have a uniquely non-pastor-centered approach to Church. But I’d imagine the same is true to varying degrees even for more congregational protestants. (As an aside, it’s at least ironic that so much of the Wright story is being flogged by Catholic journalists O’Reilly and Hannity. Stephen Colbert — who is a weekly mass Catholic — had the right take on this facet of the story.  Continuing to attend mass, he suggested, does not signal agreement with how the Church has handled, say, the abuse scandal.)

In any event, seeking out a pastor’s endorsement is a different sort of calculation than deciding whether to leave a church because of occasionally controversial (even outrageous) comments made by its pastor.  So I’m much more troubled by McCain’s flirtation with Hagee than by Obama’s decision to continue attending his church.

Sunday, May 4, 2008

Any "Star Wars" Fans Out There?

Then you must watch this!

[HT: dotCommonweal.]