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.

Monday, September 21, 2009

Camino de Santiago

For over a thousand years pilgrims have been walking the Camino de Santiago.  Tomorrow I leave for Spain.  After spending a few days with my wife’s relatives in Santander, I’ll make my way to St. Jean Pied de Port, France where I will begin a 33 day nearly 500 hundred mile walk across northern Spain to Santiago de Compostela in Galicia, following in the footsteps of St. Francis of Assisi, María de Lourdes Ruiz Scaperlanda (my wife), Christopher and Mary Scaperlanda (my son and daughter-in-law), and countless others.  For the first two and a half weeks, I’ll walk alone and look forward to meeting other pilgrims and those who will provide us hospitality.  For the rest of the trip, I’ll be joined by two good friends from Austin.

Why the pilgrimage?

In our book, The Journey:  A Guide for the Modern Pilgrim, María says:

When we make a conscious decision to live in the present moment by embracing each day, each person we meet, each situation in front of us, we are like Mary in her “Fiat,” saying “yes” to the graces that God has for us today and every day.  In the words of St. Ignatius, we step out with trust that “everything has the potential of calling forth in us a more loving response...”  It is this distinctive choice that makes us pilgrims in our everyday lives.

I can only speak for myself, but fear, the desire to set and control my own agenda, time pressures, etc. keep me from living a life of total freedom as described above by my wife with a little help from St. Ignatius.  A pilgrimage, like a retreat, is an opportunity for me to intentionally step outside normal everyday life to practice this type of openness to the graces in my life that so often go unrecognized.   After reentering normal everyday life, I hope some of the lessons from the road will be retained.

Why now?

2009-10 is transition period in many ways for me.  I turn 50 next April.  Our youngest child graduates from college next May.  I have been teaching for 20 years.  And, with a sabbatical this fall, I have from this past May until next January with no classes, dedicated time to devote to writing, and the opportunity to take an extended trip.  In short, I feel called to let go of my normal routine to learn better how to live every moment in God’s love and grace.  I wish for no rain, temperatures between the upper 40’s and low 70’s, no blisters or backaches, and wonderful welcoming people all along the way.  But, that is not real life, and it won’t be real life on the Camino, so I pray to be open to whatever comes my way.

Please pray for me as make this pilgrimage.  My fellow bloggers have consented to me posting my Camino reflections on the blog every few days, so I will keep you updated.  My next post ought to come around the end of September.

“Lord, I am grateful.  Forgive my ingratitude.”

some arguments against social justice re health care in particular

Seeing our sicknesses and other sufferings as social injustices makes us resent them more, makes us search for someone (the State) to blame for them, makes us less grateful to those officials who alleviate them (because we are only, at last, being given what we are owed). [Think here of the Gospel story of those who worked a full day and so resented the fact that those who worked a partial day received the same pay.] So there are advantages to letting non-just (not un-just) forces like nature, the market, or the absence of a gift be held responsible for the hardships in our lives, and for charity-compassion-solidarity, rather than justice, to be the motivation for relief of our plight.

The problem is that charity-compassion-solidarity itself rightly makes us want to be sure that everyone who suffers is ministered to, and the rights-oriented idea of social justice seems to offer itself as a efficient means to accomplish that goal. Is there a way to balance these two needs, for non-resentment at the vicissitudes of life and gratitude for their alleviation and also for concern to help all those in need? Does the idea of subsidiarity contain any sort of an answer here? How about tremendously increasing the tax benefits of charitable contributions aimed at improving health care for the poor? Would that help us achieve adequate material benefits without the spiritual harm found in the sense of entitlement? [I have no answer i'm trying to push here -- just thinking out loud.]

The Church on Health Care: "Defend the Private Sector!" (?)

I'm quite sure that I do not know how to solve the problems we have in this country regarding access to health care; I'm also pretty sure that the bishops don't know how to solve the problems either.  (Nor do I expect them to know.)  I find the statements of individual bishops on the topic to be interesting, primarily because their views often appear to be shaped by their own cultural or political views as much as by Church teaching.  Take, for example, the statement of the Sioux City bishop, R. Walker Nickless:

[T]he Catholic Church does not teach that government should directly provide health care.  Unlike a prudential concern like national defense, for which government monopolization is objectively good – it both limits violence overall and prevents the obvious abuses to which private armies are susceptible – health care should not be subject to federal monopolization.  Preserving patient choice (through a flourishing private sector) is the only way to prevent a health care monopoly from denying care arbitrarily, as we learned from HMOs in the recent past.  While a government monopoly would not be motivated by profit, it would be motivated by such bureaucratic standards as quotas and defined “best procedures,” which are equally beyond the influence of most citizens.  The proper role of the government is to regulate the private sector, in order to foster healthy competition and to curtail abuses.  Therefore any legislation that undermines the viability of the private sector is suspect.

Does the Church actually teach that "a flourishing private sector" is the predominant concern when it comes to a society's provision of health care? 

Friday, September 18, 2009

GOD'S ECONOMY: Faith-Based Iniatives and the Caring State, by Lew Daly

Here is the University of Chicago Press pre-publication blurb about a book that readers of MOJ should rush to pre-order:

GOD’S ECONOMY

Faith-Based Initiatives and the Caring State

 

Lew Daly

 

With a foreword by E. J. Dionne Jr.

 

University

of

Chicago

Press

(published in December 2009)

 

Though President Obama has signaled a sharp break from many Bush administration policies, he remains committed to federal support for religious social service providers. Like George W. Bush’s faith-based initiative, though, Obama’s version of the policy has generated loud criticism—from both sides of the aisle—even as the communities that stand to benefit continue to struggle with economic hardship. God’s Economy reveals that virtually all of the critics, as well as many supporters, have long misunderstood both the true implications of faith-based partnerships and their unique potential for advancing social justice.

 

Unearthing the intellectual history of the faith-based initiative, Lew Daly locates its roots in the pluralist tradition of

Europe

’s Christian democracies, in which the state shares sovereignty with social institutions. He argues that Catholic and Dutch Calvinist ideas played a crucial role in the evolution of this tradition as churches across nineteenth-century

Europe

developed philosophical and legal defenses to protect their education and social programs against ascendant governments. Tracing the influence of this heritage on the past three decades of American social policy and church-state law, Daly finally untangles the radical beginnings of the faith-based initiative. In the process, he frees it from the narrow culture-war framework that has limited debate on the subject since Bush opened the White House Office of Faith-Based and Community Initiatives in 2001.            

 

A major contribution from an important new voice at the intersection of religion and politics, God’s Economy points the way to a new kind policymaking shaped by public faith, an approach combining strong social assistance from the state with a sharp moral focus on protecting families and communities in the liberal market order.     

 

Lew Daly is a senior fellow and director of the fellows program at Dēmos, a nonpartisan public policy center in

New York City

. He is the coauthor, with Gar Alperovitz, of Unjust Deserts.

 

Advance Praise for God’s Economy

Presidents Bill Clinton, George W. Bush, and Barack Obama have all supported expanding poverty-fighting partnerships between religious nonprofit organizations and government agencies. Lew Daly has taken the complicated history and often divisive discourse concerning such faith-based initiatives to a better intellectual and civic place. With wide-ranging sophistication and candor, God’s Economy sheds new light on Catholic and Calvinist ideas about church-state relations, referees ongoing debates about religion in the public square, and weighs in on policy controversies like those surrounding religious hiring rights. Agree or not with all of Daly’s conclusions, this is an engaging, balanced, and timely book. President Obama’s faith-based policy advisors and all other interested citizens should take note.”

 

John J. Dilulio Jr., Frederic Fox Leadership Professor of Politics, Religion, and Civil Society, University of Pennsylvania, and first director of the White House Office of Faith-Based and Community Initiatives

 

Bold yet balanced, God’s Economy will confound liberals and conservatives alike. By harnessing neglected insights from Catholic, Calvinist, and other overlapping traditions of reflection on authentic social pluralism, Daly’s book offers to put both the market and the state back where they belong—in the service of the plural communities in which people learn to love, serve, and even worship. Incisive, informed, and inspiring, this is public philosophy that packs a practical punch. Much needed in places high and low, God’s Economy takes the vital discussion of mediating institutions and faith-based initiatives three long steps forward. Daly is an exemplary guide.”

 

Patrick McKinley Brennan, John F. Scarpa Chair in Catholic Legal Studies,

Villanova

University

 

God’s Economy is a remarkable effort to rethink the nature of state power, markets, and social life. Daly makes long-neglected conceptions of plural sovereignty relevant to a wide range of contemporary debates. The result is a bold, unique contribution to social thought.

 

William A. Galston, Senior Fellow in Governance Studies, The Brookings Institution

 

Balanced, thoughtful, and loaded with practical policy implications, Daly’s God’s Economy lifts the debates surrounding charitable choice and Bush’s—and now Obama’s—faith-based initiatives above the cultural wars of the left and the right by documenting their roots in Catholic and Calvinist social pluralist thinking. It thereby makes a powerful case for protecting communities—especially families and religious communities—from both the market and the state. In doing so, Daly persuasively argues that faith-based initiatives, if fully implemented, will lead to public policies more, not less, committed to helping those who are poor and on the margins of society.”

 

Stephen V.  Monsma, Professor Emeritus of Political Science,

Pepperdine

University


MOJ Friend Gerry Whyte on Christianity and Socialism

Gerry Whyte (Trinity College Law [Dublin]) writes:

[T]he relationship between socialism and Christianity ... may be closer than many US conservatives realise.
 
For a start, socalists arguably inherited from Christianity a particular way of seeing history, namely, as a linear progression to a future utopia. According to John Gray ("Black Mass - Apocalyptic Religion and the Death of Utopia"), this characteristic of Christianity also influenced Jacobinism, Fascism and, more recently, neo-liberalism - remember Fukuyama's 'End of history'? - with often catastrophic consequences for humanity.
 
More positively, Christianity has had a strong influence on the social democratic tradition, especially in the UK. The last three leaders of the UK Labour Party, John Smith, Tony Blair and Gordon Brown, all come from the Christian Socialist tradition. This is what Tony Blair has written on the topic in the foreword to Graham Dale's "God's Politicians: The Christian Contribution to 100 Years of Labour":
 
'The Labour Party and the nation are indebted to people whose Christian faith motivated their political service: individuals who were outraged by the social injustice they say all around and believed that it was their duty to stand up for the downtrodden; individuals who wanted to show compassion towards their neighbours and saw the Labour Party as a means by which this could be done; individuals who saw a connection between the values of Christ and the values of Socialism, and who chose to work out these connections in the rough and tumble of party politics.
 
It was the Christian values of these people that informed their political thinking. They believed in community, in equality and in individual responsibility. Their beliefs forced them to take political action when faced with the great need around them - the need for jobs, the need for homes or the need for health care (emphasis added!). They believed that legislation, not just charity, was needed to transform the inadequate present into a better future."
 
Finally, MOJ-ers may also be interested in the following comments:
 
'Demonstrations, protests, strikes and passive resistance - all these are means of class struggle that need to be considered appropriate. The struggle for rights, after exhausting all peaceful means ... is a necessary act of justice that leads only to the achievement of the common good, which is the goal of social existence...
It is clear that from the view of the ethical assumptions of the Bible, such a struggle is a necessary evil, just like any other human struggle... It is also evident from the Bible that struggle itself is not the opposite of love. The opposite of love is hate.
A struggle in a specific case does not have to be caused by hate. If it is caused by social and material injustice, and if its goal is to reinstate the just distribution of goods, then such a struggle is not [hatred] ... Social justice is the necessary condition for realisation of love in life...
Many times Jesus Christ has proven that God's kingdom cannot be achieved in man without a struggle .. Achievement of social justice is one element of achieving God's Kingdom on earth..."
 
"Marxism ... does not see any other way to solve the burning social issues ... Catholicism sees the possibility of solving ... social issues by evolutionary means. The struggle of the oppressed classes against their oppressors becomes the stimulus for the evolution to proceed faster ...
The class struggle... grows stronger when it meets resistance from the economically privileged classes. Pressure from the class struggle should bring appropriate changes in the socioeconomic system."
 
"The Church realizes that the bourgeois mentality, and capitalism with its material spirit, are contradictions of the Bible. According to the tradition of ... monastic/religious life, the Church also can appreciate the idea of communism... Communism, as a higher ethical rule of ownership, demands from people higher ethical qualifications."
 
"At the present state of human nature, the universal realization of this [communist] ideal ... meets with insurmountable difficulties. Private property is suited to human nature. The goal that should be pursued is to achieve, in the system based on private property, such reforms as will lead to the realization of social justice. The class struggle leads to this ...
Revolution is not the doom of society but at most a punishment for specific offenses in socioeconomic life."
 
All of the above comments are from a work called "Catholic Social Ethics", written by the then Fr. Karol Wojtyla in the early 1950s and distributed by the Catholic underground in communist Poland - see Kwitny, "Man of the Century - The life and times of Pope John Paul II" (1998) pp.138-140.

Happy Constitution Day!

Give it a read, if you haven't recently.  There's some good stuff in there:

We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America. . . .

Esenberg on CST, subsidiarity, and crises

Richard Esenberg has a very thoughtful post up at Prawfsblawg about "the Catholic notion of subsidiarity and what how it may inform our thinking about proposed expansions of the state in response to various 'crises,' e.g., the financial seizure, global warming and perceived flaws in the delivery of health care."  Check it out! The commenters include several MOJ-ers.  Here is what I wrote:

Subsidiarity is more than a rule that "things should be done at the smaller, more local level", and also more than a "vertically oriented prudential judgment about effectiveness." As Russell Hittinger puts it, "subsidiarity presupposes that there are plural authorities and agents having their 'proper' (not necessarily, lowest) duties and rights with regard to the common good." The danger (and Rob has explored this in some of his work) with thinking of subsidiarity in terms of "devolution" is that this thinking presumes that the state possesses powers that are somehow being "circulated" (Hittinger's word) to "lower" bodies, from the top down. Sure, this kind of devolution sometimes happens, and sometimes is a good idea (more efficient, more responsive, etc.), but it's not the same thing as subsidiarity. "The point of subsidiarity is a normative structure of social forms," Hittinger writes. It is not a "trickling down of power or aid. . . . The principle is not so much a theory about state institutions, or about checks and balances, as it is an account of the pluralism in society." (For more, see Hittinger's essay in the Witte & Alexander volume, "The Teachings of Modern Christianity").

Thursday, September 17, 2009

Is Sen. Baucus out to kill Grandma too?

Is the National Right to Life Committee engaging in scare tactics?  I was disturbed to read that the Baucus bill "will gravely endanger the lives of America's senior citizens."  Then I read the analysis:

With respect to rationing, the proposal contains a Medicare provision that, beginning in 2015, would severely financially penalize physicians who are in the top 10% of medical resource use.  This provision does not link funding to outcomes or quality; instead, it will force a "race to the bottom" with relentless pressure on doctors to limit health care for their older patients.  On top of the significant Medicare cuts in the bill, this will gravely endanger the lives of America's senior citizens.

 

The bill does contain language to prevent the use of comparative effectiveness analysis in a manner that would discriminatorily deny treatment because of age, disability, or terminal illness; however, this language would not affect the financial incentive to ration care as described above.

 

Does this mean that, in order to satisfy "pro-life" concerns, we have to ensure that medical providers do not have any financial incentives to limit the expense of the care they provide?  Does our current system of health care avoid such financial incentives?  If not, why is the NLRC applying a more stringent standard to the government?  Or is it a more stringent standard applied to whatever reform is favored by President Obama in particular because the pro-life community does not trust him?

Pro-life critique of baucus bill

National Right to Life comments on the Baucus proposal for health care – Sept 16, 2009.
http://www.nrlc.org/press_releases_new/Release091609.html

Fr. Jenkins' letter on Notre Dame Task Force

A letter from Fr. John Jenkins to the "Notre Dame family" has been circulated and discussed widely; the full text is available many places, including here, at the America blog.  Here is a taste: 

As our nation continues to struggle with the morality and legality of abortion, embryonic stem cell research, and related issues, we must seek steps to witness to the sanctity of life. I write to you today about some initiatives that we are undertaking.

Each year on January 22, the anniversary of the Supreme Court’s Roe v. Wade decision, the March for Life is held in Washington D.C. to call on the nation to defend the right to life. I plan to participate in that march. I invite other members of the Notre Dame Family to join me and I hope we can gather for a Mass for Life at that event. We will announce details as that date approaches.

On campus, I have recently formed the Task Force on Supporting the Choice for Life.  It will be co-chaired by Professor Margaret Brinig, the Fritz Duda Family Chair in Law and Associate Dean for the Law School, and by Professor John Cavadini, the Chair of the Department of Theology and the McGrath-Cavadini Director of the Institute for Church Life.  My charge to the Task Force is to consider and recommend to me ways in which the University, informed by Catholic teaching, can support the sanctity of life. Possibilities the Task Force has begun to discuss include fostering serious and specific discussion about a reasonable conscience clause; the most effective ways to support pregnant women, especially the most vulnerable; and the best policies for facilitating adoptions.  Such initiatives are in addition to the dedication, hard work and leadership shown by so many in the Notre Dame Family, both on the campus and beyond, and the Task Force may also be able to recommend ways we can support some of this work.

As I have stated before, I do not believe that, on balance and all things considered, it was appropriate for Notre Dame to honor President Obama with a ceremonial degree or with the role of commencement speaker.  (It is, obviously, appropriate for Notre Dame to engage in "dialogue" and "debate" with the President, and with anyone else.)  And, I do not agree with Michael Sean Winters that it was "throw[ing a] canard" to worry that Notre Dame's decision to honor the President in this way "undercut the school’s commitment to the pro-life cause."  No one who knows Fr. Jenkins doubts his own commitment to that cause, and to human dignity, but it is not unreasonable to think that Notre Dame's public, institutional activity and commitment on this front have sometimes been uneven, and lagged behind where they should be.

In any event, I believe that those of us who opposed the invitation last year, and who very much want Notre Dame to be what she should be, and what the world needs her to be, should welcome Fr. Jenkins' announcement.  Are the initiatives he described "enough"?  No, but I assume that Fr. Jenkins does not regard them as "enough."  Should their announcement end the discussion about whether Notre Dame's leaders are correct in (what seems to be) their understanding of academic freedom, the nature of a university, or the appropriate relationship between a Catholic University and the "institutional" Church?  I don't think so.

Yes, Notre Dame needs to do more.  The Administration and University leaders need to embrace and celebrate -- publicly and enthusiastically -- the work and witness of pro-life students and faculty, of programs like the Center for Ethics & Culture, of pro-life policies and proposals.  It should never be possible for a reasonable observer to think that Notre Dame cares passionately about energy conservation but reservedly or half-heartedly about the need -- the moral imperative -- to use the law (and other policy tools) to protect unborn children.

All that said . . . this is a good thing.  I'd like to see Notre Dame's pro-life critics -- that is, those of her critics who recognize her importance and who want her to be what she is called to be -- give Fr. Jenkins and this task force (full disclosure:  Prof. Brinig, one of the co-chairs, is my friend) the benefit of assuming good faith, welcome and engage their work, and -- as needed -- charitably call on them to do more.

There is a picture, often celebrated at Notre Dame, hanging in the student center, of Fr. Hesburgh standing at Dr. King's side, hand-in-hand, calling for civil rights.  I am indulging the hope that, before too long, there will be a similarly prominent picture displayed of Fr. Jenkins alongside Notre Dame's inspiring pro-life student group at the March for Life.  Just a symbol?  Merely a picture?  Perhaps.  But I think it would be one of those pictures that's worth a lot.