Thursday, November 12, 2009
I Second That Emotion
Catholic Bishops + Stupak Amendment = Iran?
Ah, the legal academy (HT: America):
[Michael Sean Winters writes:] Timothy Stoltzfust Jost, a professor of law at Washington and Lee University, thinks issues of Church and State are involved. He writes: "For Congress to have to look to a particular church for permission to move legislation is frightening. Religious persecution is a very real issue for many throughout the world today. We have been very fortunate in the United States to have been largely spared its ravages. But the only guarantee that we will continue to enjoy religious freedom is the jealous protection of the separation principle. If any religion dominates politics, it has the power to dominate other religions as well. Let us not become another Iran." This is pure baloney. No one looked to the Church for "permission" and America is scarcely in danger of becoming another Iran.
This kind of thing has been rampant throughout the blogosphere -- and even, as Rob reported, in some quarters of Congress.. It would be silly were it not so frightening and dangerous. A great many educated, respectable, influential, engaged, and riled-up people appear to believe that there was something illegitimate, even "theocratic", about the leaders and members of the world's oldest non-state institution making their case for (i) health-insurance legislation that (ii) does not fund the destruction of unborn human life. (There is nothing similarly illegitimate, though, about, say, the AARP's -- or, for that matter, Planned Parenthood's -- lobbying.) Religious liberty is vulnerable in such a climate, I fear.
An update: The Washington Post characterizes as an "ultimatum" the Church's expressed concern that the lack of a meaningful religious-liberty exemption to the same-sex marriage law working it's way to passage in DC will require the Church to get out of much of its social-service work. According to some DC legislators, it is "childish" for the Church to think that it should not have to surrender her right to hire-for-mission in order to help the City help the poor.
Wednesday, November 11, 2009
A new paper of possible interest
My friend and former student, Stephen Wallace, has posted on SSRN his paper, "Why Third Party Standing in Abortion Cases Deserves a Closer Look." Here is the abstract:
Third-party standing, the out of the ordinary ability for a litigant to bring not only his own claims to court but those of an absent party as well, is a powerful legal device that demands close attention by judges applying difficult, fact-based tests. Too often since the split decision in Singleton v. Wulff (1976), federal courts have not engaged in a thorough analysis when abortion providers have sought third-party status to present the interests of current or prospective clients. In those cases, the third-party claims were often decisive to the final outcome, making the initial third-party standing determination one of great importance.
This Note argues that the United States Supreme Court decision in Kowalski v. Tesmer in 2004 is not only the new governing law on this question, but is also better in tune with the purposes of standing law than the Singleton plurality opinion. It further argues that most abortion providers’ third-party standing claims will not pass the much more rigorous Kowalski test, and includes some practical suggestions for litigants on using the new standard.
All you Article III jocks out there . . . dig in!
Northwest Frontier Province Alert: Color Orange
Hello All,
Many thanks to Michael and Rick for the stimulating thoughts on capital punishment. I'm not as smart as you fellows, Finnis, or anyone else you have mentioned, so I'll simply say that the gut horror I've always experienced in contemplating CP is probably best articulated as Michael has done in describing the book, while my own attempts to justify opposition to CP rooted in that horror have often taken a shape rather like Rick's.
Wanted to say a bit by way of linking this conversation to some thoughts that occurred in the immediate aftermath of 9/11, but alas am a bit pressed for time again so will try to write more thoughtfully on that later. In the meanwhile, I thought you might all enjoy the "observations" on CP made by this distinguished statesman -- http://www.daveschultheis.com/ -- a Colorado state senator. If you look to the bottom of that homepage, you will find what would appear to afford reasons for resuming the 30 Years War. If you look to this issues page -- http://www.daveschultheis.com/ISSUES/Crime/Index.html -- you will find calls both for "more prompt and sure use of the [capitalized!] Death Penalty" and "increased clergy involvement," which I suppose means, on pain of incoherence, that Catholic clergy will not be among those "involved." And finally, if you have a look at this lovely "tweet" that he sent out earlier today -- http://www.coloradopols.com/diary/10793/sounding-the-bottom-with-dave-schultheis -- you will find that the US is now Pan Am Flight 93, which the duly elected US President has "hijacked" and "we" -- we? -- are to wrest away from him by storming the cabin.
Heaven help us.
All best and more soon, Bob
Response to Michael on Catholicism and capital punishment
On the Roman Catholic Tradition and Capital Punishment
The best treatment of the Roman Catholic tradition and capital punishment with which I am familiar is this book, written at Oxford under the supervision of John Finnis: E. CHRISTIAN BRUGGER, CAPITAL PUNISHMENT AND ROMAN CATHOLIC MORAL TRADITION (Notre Dame, 2003) (here). Brugger makes a powerful case that by the papacy of John Paul II, the Tradition had developed to the point where capital punishment is morally beyond the pale not merely as a prudential matter but as an entailment of the premise that one may never intentionally destroy a human life--full stop. No "innocent" in front of "human life". And, of course, although there is a "doctrine of double effect" justification for some killing in self-defense or in a just war, there is, as Brugger carefully explains, no DDE justification for capital punishment.
For my own position--or at least for what was my position a few years back--see my "Capital Punishment and the Morality of Human Rights," 44 Journal of Catholic Legal Studies 1 (2005) (based on a lecture I was privileged to give at St. John's University School of Law in October 2004). That paper is downloadable here.
More on John Muhammad's Execution
Michael Perry beat me to it, but . . . a few thoughts on the Muhammad execution, and it's connection to the larger debate about the content and implications of our -- that is, of Catholics' -- pro-life commitment:
First, it seems to me that the execution of Muhammad (like the execution of, say, Tim McVeigh) is a challenge to abolitionists (like me) to reflect carefully on the reasons why we oppose capital punishment. After all, Muhammad committed horrible crimes (there is no danger, in this particular case, so far as I know, that the wrong person was executed) and I am not aware of any troubling deficiencies in his representation or in the review of his case. Why, exactly, should he not be executed?
The answer is probably not, I think, "because it is never justifiable, given the dignity of the human person, for the public authority to kill a human being." Punishment can be morally justified and the Church has always taught (and still, so far as I understand it, still teaches) that capital punishment can also, in some (exceedingly rare) circumstances, be justified. So, why shouldn't we impose this punishment? It is simple to say "because this is not one of those exceedingly rare circumstances." Why not?
Now, what happened to John Muhammad is not, I think, the same thing, morally speaking, as what happens when a doctor causes the death, by abortion, of an unborn child; what happened when Virginia's lawmakers authorized capital punishment for aggravated murders, or when it was decided that Muhammad's was such a murder, was not the same thing, morally speaking, as what happens when legislatures decide to exclude unborn children from the law's protections against lethal private violence. Still, I think our laws should not authorize, and we should not impose, capital punishment. Why?
Some reasons are easy: Capital punishment is very expensive (and its "benefits" do not seem to outweigh its "costs"); it seems (even more so than punishment generally) difficult to distribute in a way that maps with the exactness we should want onto culpability; it is final (and so mistakes cannot be corrected); etc. What else?
For me, two lines of thought do most of the work. (I think I owe both of them to Cardinal Dulles, but I might have him wrong): First, opposition to capital punishment expresses my commitment to the idea that the modern state is not absolute, though it has troubling pretensions to absolute-ness; second, a society that manages to restrain itself from imposing capital punishment might turn out to be (though, it is far from clear that it will in fact turn out to be) more pro-life generally; a society that is able to say "we will not execute, though we could, and though we would gain some benefits from doing so, even a duly convicted murderer" might also manage to say "we will not indulge the pernicious idea that some people have a fundamental moral right to cause the deaths of other vulnerable people who depend on them, just because it seems beneficial to do so."
UPDATE: Over at National Review Online, Kathryn Lopez has these thoughts about her opposition to capital punishment. Bottom line: "We can do better."
Tuesday, November 10, 2009
More on that TIME article (plus John Allen on Archbishop Burke and the Vatican)
Speaking of Pro-Life ...
BREAKING NEWS
John Allen Muhammad, the Washington-Area Sniper, Is Executed
Virgina is now a better place, yes? (Retribution.)Well, at least now a safer place, yes? (Deterrence.)
And the United States too, therefore, yes?
And "We, the People" are now a better (in some sense, surely) people, yes?
Praise the Lord!
A Victory (for the Moment) for Pro-Life Democrats
In recent years, at
academic conferences, in faith-based circles, and on blogs such as this one, the
question frequently has been posed whether political activists and politicians
committed to the sanctity of human life can survive and play any meaningful role
in the Democratic Party, given the national party’s commitments to an unlimited
abortion license and even to government sponsorship and funding of abortions. As some of our readers know, I have been
among the skeptics.
A positive answer was
delivered this past Saturday. Pro-life
Democratic Representative Bar Stupak of Michigan, supported by some 40 other
pro-life Democrats, were willing to stand up against both party leaders in the House
and President Obama and refuse to lend their support to the party’s
highest priority legislation, the health care reform bill, without an amendment
to prevent any use of government funding to promote elective abortions. In sum, pro-life Democrats insisted upon a
health care reform proposal that did not contradict the very premise of health by
dealing death to unborn children.
Sadly, the battle is not yet over for a health care reform bill that does not destroy the health of the unborn. Democratic leaders in the Senate are expected to block full protection for the unborn in the Senate bill (link and link). The House Democratic leadership that permitted a vote on the Stupak Amendment already is cynically planning to strip it out of the legislation in the eventual and secretive conference committee to reconcile the House and Senate versions of health care reform (assuming the Senate is able to pass any bill) (link).
Not
surprisingly by this point, President Obama too has expressed his opposition to the Stupak
Amendment, offering the disingenuous argument that government subsidies for
private insurance that provide for elective abortions are not the equivalent of
government funding of abortions (link). Adding one more item to the
growing list of pro-abortion actions by this Administration, the overtures of
the Obama campaign last year to Catholics and pro-life Americans have long since been exposed as convenient and empty rhetoric.
As a sad reminder of where most Democrats stand on this matter, Democratic Representative Lynn Woolsey of California responded to the success of the Stupak Amendment by calling for the Internal Revenue Service to investigate the support of the Catholic bishops for this legislative protection of human rights for the unborn. On behalf of the bishops’ conference, Kathy Saile responded: “We are very grateful for the courage of the Pro-Life Dems who helped lead this effort. The most important thing is that the House passed a health care bill and that it included the Stupak amendment. This was a true grassroots effort. There were too many people involved to try to list them all. The USCCB met with whomever would meet with us and listen to our concerns.”
For now, we can congratulate Pro-Life Democrats in the House, thank God for their witness, and pray for their perseverance as the legislative battle continues.
Greg Sisk
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