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.

Friday, September 5, 2008

Traditionalism, Confederate-Style

By Michael Perry

New York Times, September 5, 2008

Georgia GOP congressman calls Obamas 'uppity'

WASHINGTON (AP) -- Democrats are calling on a Republican congressman from Georgia to apologize for referring to Barack and Michelle Obama as ''uppity,'' but the lawmaker stood by his comments and said he meant no offense.

Speaking to reporters Thursday, Rep. Lynn Westmoreland of Grantville, Ga., described the Obamas as members of an ''elitist-class ... that thinks that they're uppity,'' according to The Hill, a Capitol Hill newspaper.

Asked to clarify whether he intended to use the word, he said, ''Yeah, uppity.''

In a statement Friday, Westmoreland -- a white man who was born in 1950 and raised in the segregated South -- said he didn't know that ''uppity'' was commonly used as a derogatory term for blacks seeking equal treatment. Instead, he referred to the dictionary definition of the word as describing someone who is haughty, snobbish or has inflated self-esteem.

''He stands by that characterization and thinks it accurately describes the Democratic nominee,'' said Brian Robinson, Westmoreland's spokesman. ''He was unaware that the word had racial overtones and he had absolutely no intention of using a word that can be considered offensive.''

The Obama campaign had no immediate response. But the head of the Georgia Democratic Party called on Westmoreland to apologize, saying his comments were ''more of the same, tired old politics that are dividing this country.''

''The fact is, political attacks like this don't lower gas prices one cent, they don't give one more American access to affordable health care, and they don't get one more Georgian a job that pays the mortgage,'' Jane Kidd said. ''Lynn Westmoreland should be ashamed of himself.''

Westmoreland is one of the most conservative members of Congress. He has drawn criticism from civil rights advocates on a number of issues, including last year when he led opposition to renewing the 1965 Voting Rights Act. He also was one of two House members last year who opposed giving the Justice Department more money to crack unsolved civil rights killings.

Thursday, September 4, 2008

Political Slogans

By Robert John Araujo, SJ

I would like to follow up to Rob’s and Rick’s postings regarding the Republican Party’s slogan, “Country First.” As with any political slogan, the inquisitive observer can ask, “but what does it mean?” This is true with the Republican statement as it is with the Democrats’ “Change.” Change for what? It is evident that the Constitution and the November election will bring a change, but what is its content? Only time will tell, but it would be nice to have some good insights now prior to the election. Getting back to “Country First,” is the Republican statement intended to be a rhetorical device to establish American hegemony or is it an endorsement for the common good on a national level? (By the way, I am grateful for Rob’s clarification that he is not seeking “UN First.”) Given the fact that the Presidential candidates are running for national office rather than international office, perhaps we might, for the time being, give the benefit of the doubt to this latter interpretation about the prominent role of the common good. Indeed, Govern Palin addressed the common good in her acceptance speech last evening. And surely the statement “Country First” has more appeal on substantive moral grounds than “Me First.”

            But if slogans like “Country First” and “Change” are subject to numerous and different interpretations, some credible and others less so, it is clear that other political slogans from the past were not immune from ambiguity either. For example, we might consider the meaning of: “A New Deal,” “A Square Deal,” “The New Frontier,” “The Great Society,” and, from a foreign perspective, “The Great Leap Forward.” With the passage of time, the content of these slogans took shape, and so I think the same can be said with regard to “Change” and “Country First.” As with past political catchphrases, these will be defined by the understandings of the agents whose future influence will be considerable but at this stage indeterminable. As Rob suggests, “Country First” could be defined by some of those whom he has identified. But he has no similar list for those who will or may define the meaning of “Change”?

            I would like to supplement Rob’s reliance on President George W. Bush’s past statement that the United States “should not join the International Criminal Court because we should not ‘join a foreign court’ where ‘our people could be prosecuted’” as an illustration of the meaning of “Country First.” There is more to the quotations Rob relies on in his illustration that must be considered before judgment concerning the implications of President George W. Bush’s position on the Court can be reached. First of all, we must recall that the United States, under the Clinton Administration, voted against the Statute of the International Criminal Court at the Rome Diplomatic Conference that concluded on July 17, 1998. The grave concerns of the Clinton Administration had regarding the Statute’s text were expressed by Ambassador David Scheffer. I was a delegate at the Conference, and I recall hearing first hand the passionate and reasoned statement presented by Ambassador Scheffer in critiquing the text and explaining why the US voted “no” and joined the ranks of Iraq, Israel, Libya, the People’s Republic of China, Qatar, and Yemen that also voted in the negative. Within weeks after the closing of the Diplomatic Conference, Ambassador Scheffer issued an official statement [HERE] and testified before a Congressional Committee [HERE] to explicate the views expressed and the actions taken by the United States at the Diplomatic Conference.

            It is true that President Bill Clinton signed the Statute (this is not to be confused with ratification and becoming a party to the International Criminal Court) on the last date possible for signature, i.e., December 31, 2000, in the twilight of his Administration. But signing the Statute was a way of retaining negotiating options so that the United States could continue to express formally its concerns about the Court and preserve its objections—a prudent policy followed by sovereign States in public international law circles. At the signing, President Clinton stated the following:

In signing, however, we are not abandoning our concerns about significant flaws in the treaty. In particular, we are concerned that when the court comes into existence, it will not only exercise authority over personnel of states that have ratified the treaty but also claim jurisdiction over personnel of states that have not. With signature, however, we will be in a position to influence the evolution of the court. Without signature, we will not. Signature will enhance our ability to further protect U.S. officials from unfounded charges and to achieve the human rights and accountability objectives of the ICC. In fact, in negotiations following the Rome Conference, we have worked effectively to develop procedures that limit the likelihood of politicized prosecutions. For example, U.S. civilian and military negotiators helped to ensure greater precision in the definitions of crimes within the court’s jurisdiction. But more must be done. Court jurisdiction over U.S. personnel should come only with U.S. ratification of the treaty. The United States should have the chance to observe and assess the functioning of the court, over time, before choosing to become subject to its jurisdiction. Given these concerns, I will not, and do not recommend that my successor submit the treaty to the Senate for advice and consent until our fundamental concerns are satisfied. Nonetheless, signature is the right action to take at this point. I believe that a properly constituted and structured International Criminal Court would make a profound contribution in deterring egregious human rights abuses worldwide and that signature increases the chances for productive discussions with other governments to advance these goals in the months and years ahead. (bold italics mine)

President Clinton’s full statement given at the signing of the Statute of the International Criminal Court is [HERE]. As suggested by bold italicization I have provided in the excerpt, President Clinton was counseling his successor, President George W. Bush, not to seek ratification of the Statute until “fundamental concerns” (which in fact are shared by both of these Presidents) are satisfactorily addressed. President Clinton asserted that he would not seek ratification in spite of his signature. To critique President Bush’s perspective as a reinforcement of a particular meaning of “Country First” should not proceed without taking stock of the significant role of President Clinton that undergird’s President Bush’s approach to the International Criminal Court. Rob’s interesting illustration of “Country First” that uses President Bush stands on the shoulders of the earlier deeds of President Clinton.

RJA sj

Mark McKenna on abortion, Roe, and the election

By Rick Garnett

My friend and colleague, Mark McKenna, sent in these thoughts, regarding some recent posts by Greg Sisk, me, and others:

Rick, on your response to Tom, you write:  “The problem with Roe . . . is not just that because it facilitates wrong choices by private persons; it is also, and fundamentally, at odds with our constitutional structure and with democratic self-government.  As long as Roe is the law, We the People are not allowed to write into law the conviction — assuming that it is or becomes our conviction — that the unborn child ought to be protected from lethal private violence.”  Of course that’s precisely what constitutional provisions do, and what they are designed to do – to prevent people from writing into the law convictions that are contrary to the constitutional provision.  So, for example, we are not allowed to write into law a conviction, if we have one, that guns should be banned entirely because their availability inevitably leads to the destruction of innocent life.  The only question is whether or not we think the constitutional principle is a legitimate one (i.e., whether we accept that the 2nd Amendment protects private gun ownership unrelated to militia membership).  In the abortion context, the issue is whether the constitution in fact protects a right to privacy, and whether that right encompasses the right to choose an abortion.  The answer to that question may well be “no” (I think it probably is “no”), but it seems clear to me that it’s a question that can’t be answered except by application of some method of constitutional interpretation.  Unless you’re suggesting (and it doesn’t seem to me that you are) that Catholics must adopt a particular interpretive methodology, then the Roe question, I think, is not a “Catholic” question at all.  That doesn’t mean it’s not a legitimate question, just that the Catholic thing really shouldn’t be brought into the discussion.

On the broader point about what the best approach to abortion should be (aside from Roe), I think the best possible answer is that we would BOTH create the sort of social-welfare programs that (assuming this study is valid) seem to demonstrably reduce the incidence of abortion AND have the sort of symbolic statement you suggest.  But the fact is that neither party is offering both.  So, as voters, we’re left to determine what matters more, symbolism or reduction of the number of abortions.   [To be clear, there certainly are things the Democrats could do – things short of banning abortions – to reduce the number of abortions even more than the social-welfare programs would.  I have in mind here rejection of public funding, etc.  I think it’s deeply regrettable that the Democrats haven’t seen clear to this, though I do think it important to note that the study is about net effects, even accounting for some of the things you mention in your post, like public funding, etc.].

Greg, on the “personal witness” point:  I’m with Obama on the Bristol Palin story – it is, and should be, off limits.  Nevertheless, I think many of Palin’s supporters have been pretty hypocritical about this.  It seems obvious to me that Palin’s political salience derives primarily from her personal witness and not anything she’s done in public life – and indeed many of her supporters have focused on her personal witness when expressing their support.  That may be fine, but it sets up a real issue.  If personal witness matters, and should matter, in the sense that we should be attracted to her candidacy because of her choices regarding her youngest child, then one can’t be surprised if people suggest that her daughter’s pregnancy ought to be counted in the evaluation of her personal witness.  You can’t have it both ways. 

The UN First?

By Rob Vischer

A reader wonders whether I pulled a bait-and-switch on Rick with my complaint about McCain's "Country First" slogan:

In your reply to [Rick's] post, you state "[B]ut I think slogans like these encourage our tendency to put "American" interests over human interests." . . . But isn't this argument a type of bait and switch on your part (and I don't mean to imply any malice)?  Your original point was that the slogan was wrong because it put "country" ahead of "God."  At least that is how I, and it looks like Rick Garnett, read it. 

Your response brings up a different question: whether or not the system of independant, sovereign nations is the best method yet devised to advance and protect human rights.  As opposed to what seems to be your preferred choice of an international bureaucracy.  Those are far different issues.  Indeed, I think it is playing to the anti-UN crowd.  But I don't see that as problematic from a Catholic/Christian standpoint.  I think its a political problem over which reasonable people can disagree.  A commitment to the rights of man does not require that one decommit from national sovereignty.  But again, I think that's a different issue from the one initially raised.

This is a good point, so let me clarify.  I do not suggest that "Country First" should be replaced by "The UN First."  Our commitments to our Creator must come first.  But most of us will not be asked explicitly to place Country over God -- we're not often given the choice between bowing to the earthly ruler or facing the fiery furnace.  More commonly, our commitments to God are lived out through our recognition that our fellow humans were created in God's image, and it is that recognition that is dangerously clouded by making an idol out of Country (or money, or academic prestige, or the UN).  In some contexts, we should support international institutions because the nation-state system does not adequately protect human dignity.  In other contexts, international institutions may pose the greater threat to human dignity.  If we take subsidiarity seriously, I would submit, Christians should take a consequentialist view of national sovereignty -- is it an effective vehicle by which to protect human dignity and facilitate human flourishing?  In many (most?) cases, the answer is yes.  But not in all cases, and "Country First" obfuscates that fact.  In its more extreme versions, it completely obliterates our commitment to human dignity by placing a greater value on American lives than non-American lives.  (I do not accuse McCain of that more extreme version, but I do accuse Mitt Romney of it, and his speech last night solidified my view.)

Wednesday, September 3, 2008

Bearing Witness to Life and Personal Biography

By Greg Sisk

As faithful Catholics with a vocation to the law and public life, our foremost responsibility is to bear witness to the sanctity and dignity of human life at every stage. For that reason, when we are discussing the current electoral choice, I cannot agree with my friend Tom Berg when he argues that “our discussions would generally be more productive if we stuck to proposed policies rather than using personal biographies [of candidates] (themselves OK) in a selective way.” Of course we should discuss and debate programs and policies. That is a central part of our call to engaging in and thinking about law and public life. But I believe that how a candidate bears personal witness to the sanctity of human life at every stage is more revealing and more important in evaluating the character of a leader than are programs recited in a political platform. Moreover, since by arguing that I have been using personal biographies in a “selective way,” Tom is actually objecting to my highlighting of those elements of a candidate’s personal biography that directly affirm (or contradict) the sanctity of unborn human life, I could not disagree more. We should give more, not less, attention to those stories and what they tell us about these men and women.

In evaluating the candidacies of those who ask for our trust in the highest offices of our nation, we first should listen to the message that he or she espouses, that is, what the candidate says and how clearly he or she says it about the right to life of the smallest and most vulnerable among us. Next, we should hear their personal stories as to how they bear witness for (or against) the sanctity of unborn human life. Promises of political programming are a distant third in importance, especially when those promises are not to extend protection to unborn human life but rather constitute indirect assurances that fewer lives will be stolen as a collateral consequence of doing something else politically.

First, let us consider the message: When one of our major presidential candidates was asked point-blank about the human rights of the newest members of our human family, he responded with an equally direct and unequivocal answer: “At the moment of conception. . . . And as President of the United States, I will be a pro life president and this presidency will have pro life policies. That’s my commitment. That’s my commitment to you.” When the other candidate was asked when "does a baby get human rights," he offered the languid excuse that human rights for infants was a difficult theological and scientific question and that providing a straight answer was “above my pay grade.” Thus, the message of one candidate publicly affirmed the right to life, while the message of the other candidate was abstract and evasive (until later when he affirmed his endorsement of a constitutional right to abortion on demand). Which message encourages our fellow citizens to take seriously and consider the fundamental claim for life for the unborn?

Second, let us consider the witness for unborn human life: When one of our presidential candidates was confronted by the witness of Mother Teresa who held up a tiny orphan baby whose life was in danger, he responded in a most personal way by bringing that child into his own family. When the other presidential candidate was confronted by eye-witness stories of babies surviving abortions and being left alone to slowly die in trash bins in a utility room, he was described by those witnesses as being unmoved and responding with a cold insistence on unqualified support for the right to abortion. (In saying that I made selective use of personal biography, Tom asks why I did not mention Barack Obama’s former work as a community organizer. But as this story reveals, being a political organizer says little about whether one is committed to protecting unborn—or even newly born—human life.) One candidate bore personal witness to the Culture of Life, while the other sadly could not shake his political allegiance to the abortion license. Should we not consider these personal stories as highly relevant to our choice of a leader? Which “personal biography” most clearly stakes a claim for the protection of unborn children in our society?

And now we have a new face on the national scene, a mother who refused to turn aside the small voice of life and who brought her baby into the world, knowing he would face special challenges. And that same mother now faces the additional challenge of learning that her teenage daughter has become pregnant, a story which is unfolding in manner that further affirms the sanctity of human life. (By contrast, we remember when the other party's presidential candidate addressed a similar but hypothetical scenario by saying he would not want his daughter “to be punished with a baby.”) Governor Sarah Palin’s “personal biography,” and that of others like her who are now receiving well-deserved attention, touches hearts, shapes our culture, and saves lives. The energy that has been brought to the pro-life movement with her selection speaks volumes. The excitement within the community of parents of Down's Syndrome children for this choice will have a powerful and long-lasting resonance. Such an example is worth far more in building a Culture of Life than political promises and government programs. One need only spend a little time surfing the internet these days to come across messages from many women, many of whom have been pro-choice, who are captivated by Sarah Palin’s story. By her “personal biography,” many eyes have been opened to the possibility of a life-affirming answer to the challenges posed by unexpected pregnancies or prenatal problems.

Finally, proposals for new or expanded government programs and spending that may enhance the quality of life and thereby discourage more people from making the decision to take the lives of the unborn are worthy subjects of our attention. After an election is over, the winners have taken office, and we must get on with the business of government, to seek a place of common ground with those of differing viewpoints, even on such a fundamental question as the right to life, is not only appropriate but commendable. Whether a particular plan is a good one and deserving of our support is a matter of prudential judgment, but an important matter of such judgment.

But should we not be uneasy when a promise of government spending is offered as a lure to persons committed to the dignity of unborn human life by a political candidate whose message, personal story, and platform contradict or are even hostile to unborn human life? Perhaps it's just me, but I worry that this looks like we who stand squarely for the right to life are being offered money, albeit money that would not go into our own pockets but instead be spent by government agencies for potentially worthwhile programs, to suppress a principle for political gain? What would be an acceptable political price for agreeing to set aside our principled distaste for a candidate’s avowed commitment to enshrining and expanding the license to abortion? $100 million in new government spending? $1 billion? $10 billion? At what level of promised government spending may we in good conscience subordinate our pro-life witness and cast our lot with a candidate who emphatically endorses a constitutional right (indeed a right that he promises to fund with government money) to rip unborn children from their mothers’ wombs, dismember their bodies, and flush them away as medical waste? Am I wrong to characterize the proposed bargain in such stark terms? Or am I simply being brutally and uncomfortably honest? And if we accept such a bargain, what message do we send? What would remain of our witness for the Culture of Life?

Greg Sisk

Why "Country First" is a dangerous slogan

By Rob Vischer

I'm not so sure that the McCain campaign's embrace of the "Country First" slogan is harmless.  I agree with Rick that few Americans will actually put "country" above family, faith, or friends in their day-to-day prioritizing, but I think slogans like these encourage our tendency to put "American" interests over human interests.  "Country First" could have been the chant when President Bush justified the Iraq war by proclaiming, "I'm not willing to stake one American life on trusting Saddam Hussein."  (Instead, we opted for the certain destruction of thousands of Iraqi lives caused by a full-scale invasion.)  Or when Bush explained that we should not join the International Criminal Court because we should not "join a foreign court" where "our people could be prosecuted."  Or when Mitt Romney said that we should double the size of Guantanamo because we don't want detainees to have access to lawyers like they would have on our soil.  More broadly, "Country First" can easily give rise to an American exceptionalism grounded in triumphalism, rather than humility, and to the belittlement of global concerns.  (In the interests of bipartisanship, I'll note that President Bush's initiatives in Africa buck this trend, and the Democrats' economic rhetoric on globalization exacerbates this trend.)   

Priorities

By Robert John Araujo, SJ

As a follow-up to Rob's and Rick's commentaries on "country first," we should consider the words of Thomas More: "I die the King's good servant, and God's first."

RJA sj

"Country first" . . . Rob's right

By Rick Garnett

Rob, I agree with you.  For Catholics, "country" is not, really, "first".  (Does it even come before "Notre Dame"?)  In a way, were the Blanshard-ites right?  The Church is -- Christ is -- and has to be "first".  But, seriously . . . do you think that the people in the hall really mean "country first" literally?  Of course not.  It's a political convention.  Those folks -- like most of us -- will go home and, in their day-to-day lives, put spouses, kids, career, friends, town, church, and football teams "first."  (By the same token, I can't believe that the intelligent people in Denver last week really believe that "[they] are the change [they] have been waiting for".) 

Some folks will suffer great pain, and make great sacrifices for, their "country".  But, let's not kid ourselves . . . most of us -- most at the GOP convention, and at the Democrats' convention -- would not.  Pain hurts, after all.  (Humiliating those who disagree with you is -- as the recent rounds of loathesome blogospheric "it's not her baby!" and "look at his my-space page!" cauldron-clatches have shown -- much easier.)

In the same vein, I think it's pretty clear that no serious Catholic should ever be caught chanting slogans or waving signs (without tongue firmly in partisan cheek) to the effect that a presidential candidate is the spes that saves.

Tuesday, September 2, 2008

"Country First"

By Rob Vischer

I just finished watching tonight's GOP convention speeches, and I noticed that they were punctuated by plenty of "Country First" chants.  I confess to cringing a bit.  How should we, as Catholics, respond to the McCain campaign's embrace of "Country First" as a campaign slogan?  I could understand, and fully support, "Country Before Party" or "Country is Really Important" or "Patriotism is, On Balance, a Good Thing" or "One-World Government Has a Significant Downside," and though I'm not a professional campaign strategist, I can see how those more nuanced slogans don't quite work on a t-shirt.  But should followers of Christ ever get behind, much less find themselves chanting, "Country First?"

Human nature and the tattoo culture

By Rob Vischer

I knew that the whole tattoo craze had really gone mainstream this summer when my 18 year-old niece was taken to get a Christian-themed tattoo on her back by her staunchly Republican grandmother.  R.R. Reno has a particularly thoughtful reflection on what our deepening love for tattoos says about human nature, the conformity of individualism, and the striving for permanence.

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