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, March 19, 2010

What I admire about Obama, Emmanuel, and Pelosi

By Robert George

In many ways, I'm the opposite of an admirer of Barack Obama, Rahm Emmanuel, and Nancy Pelosi.  But I have to admit to a certain admiration for the toughness (one might say ruthlessness) with which they are prosecuting their political agenda.  Many of my fellow Republicans and conservatives are expressing indignation and resentment at their tactics---the arm twisting, the back room dealing, the demonization of some companies and industries, the coopting of others, the aggressive attacks on their critics. And I will confess that some of the things they've done, especially the dissembling ("all the negotiations will be on C-Span") and the vote buying (as with the Lousiana Purchase and the Cornhusker Kickback) are clearly over the line.  My advice to folks on my side, though, is to spend less time expressing outrage at the left-wing Democrats and more time learning from them.  I've given this advice before.  The last time was when the Republicans had a great victory in the 2002 midterm elections.  I'll reprint below the relevant part of my deliberately provocatively titled piece "No Time for Magnanimity."  My bottom line was that left-wing Democrats "are not timid about exercising political power when they come into possession of it.  Nor should Republicans be."  (I think it's now pretty obvious that I was right in saying that left-wing Democrats---especially, I would now add, those who came up through the Chicago and San Francisco machines---are not timid about exercising power.)  The time is coming, probably sooner rather than later, when the Republicans will regain control of one or possibly both houses of Congress.  I trust that they will pursue policies quite different from those of Obama, Emmanuel, and Pelosi.  But I hope that they learn from their adversaries' admirably aggressive and unsentimental determination to win, and thus to advance the causes they believe in.  I hope that they will, for example, fight for legal protection for unborn children (including those with Down Syndrome and other disabilities) just as aggressively and uncompromisingly as their opponents fight to deny the unborn legal protection and to ensure that public money is made available to destroy them when they are deemed by their parents to be inconvenient or unwanted.

No Time for Magnanimity - Republicans, act!
National Review Online ^ | November 8, 2002 | Robert P. George

. . .  Liberals in the Democratic party believe in their causes (however misguided) and are willing to fight for them. They play to win. Contrary, however, to what some Republicans sometimes say, the Democrats (well, most of them, anyway) do not believe in winning merely for its own sake. They believe in winning in order to advance their ideological goals and achieve their policy objectives.

On Tuesday we won. But if our victory is to mean anything, we must act with determination to advance our causes. You can be certain that the ideological hard Left — whose grip on the apparatus of the Democratic party was strengthened by the results on Tuesday — is prepared to act with nothing less than determination to stop us.

. . . We need to move aggressively on the issues that our candidates campaign[ed] on. At the top of the list is antiterrorism and national security. But there is more, including tax reform and economic growth, enhanced legal protection for the unborn, partially born, and newly born, a ban on all forms of human cloning, and passage of the president's faith-based initiative.

An issue on which President Bush — to his great credit — campaigned vigorously and unceasingly as he toured the country touting Republican senatorial candidates is the confirmation of judges he has appointed and will appoint to fill vacancies in the federal courts. The Democrat-controlled senate — playing to win — has spent two years doing everything it can to prevent the president's nominees — men and women of unsullied honor and proven ability — from getting a confirmation vote or, in many cases, even a hearing. Now it is our turn to play to win.

The first priority of the Senate under Republican leadership should be to rectify a particularly egregious wrong. The worst of the many sins committed by the ultraliberal Senate Judiciary Committee after Jim Jeffords defection transferred control to the Democrats was the trashing of Texas Supreme Court Justice Priscilla Owen. Despite her distinguished record on the bench — one that earned her a "well-qualified" rating even from the liberal American Bar Association — the Democrats killed her nomination to the United States Court of Appeals for the Fifth Circuit for one simple reason: She declined to interpret a Texas law regarding parental consent to abortion in the way favored by pro-abortion liberals.

By defeating the nomination of Justice Owen, the left-wing Democrats sought to lay down a marker. Their goal was to establish the proposition that any nominee, however well qualified, who did not strictly toe the liberal line on abortion was "out of the mainstream" and unfit to hold federal judicial office.

President Bush should revive the nomination of Priscilla Owen. Trent Lott should schedule a floor debate and vote on her nomination at the earliest possible moment. Let Teddy Kennedy and Barbara Boxer howl. Then defeat them. There is no need for further hearings. No one seriously doubts that that Justice Owen is highly qualified for the job. Everybody knows why left-wing Democrats wants to deprive her of it.

It is time for Republicans to lay down a marker of our own: We must make clear our determination to secure the appointment of judges who will interpret the Constitution and laws faithfully.

There should be no thought of compromising to appease left-wing Democrats. What we should do, rather, is learn from them. They are not timid about exercising political power when they come into possession of it. Nor should Republicans be.

— Robert P. George is McCormick Professor of Jurisprudence and Director of the James Madison Program in American Ideals and Institutions at Princeton University. His most recent book is The Clash of Orthodoxies.

Bill Saunders on the health bill and abortion

By Robert George

My dear friend, Harvard Law School classmate, and godson Bill Saunders of Americans United for Life has dedicated his career to the defense of victims of human rights violations---born and unborn---from Shanghai to Saudi Arabia and from Sudan to Seattle.  On today's Daily Caller, he weighs in against the claim that the pending health care bill will reduce the number of abortions.  Here is the link:  http://dailycaller.com/2010/03/19/house-of-cards-universal-health-reduces-abortion-argument/

Is it "the most abortion-expansive piece of legislation ever to reach the floor of the House"?

By Robert George

Today David O'Steen and Douglas Johnson of the National Right to Life Committee publicly released a letter they have sent to all members of the U.S. House of Representatives urging them to vote against the Senate-passed health care bill now under consideration in the House.  They describe the bill as "the most abortion-expansive piece of legislation ever to reach the floor of the House of Representatives."  They make seven points in support of this claim.  I wonder if anyone is prepared to argue that any of the factual claims they make about what the bill says and would do are false.  Here is a pdf. of the letter:  http://www.nrlc.org/AHC/NRLCToHouseOnHealthBill.pdf

Just to Clarify, 'For Me' Double Effect Settles It: And another 'Thank You' to Rick

By Steve Shiffrin

Greetings Again, All,

And many warm thanks to Rick for his thoughtful post.  I think, a propos Rick's reflections, that I might do well quickly to emphasize a bit more some of what I do mean, and some of what I do not mean, in saying that 'for me, Double Effect settle it.' 

I definitely do not mean to suggest that I think DDE simpliciter settles things, any more than I think most of the 'tests' regularly employed by courts in reviewing legislation for its comportment with the US Constitution's Due Process or Equal Protection clauses can generally of themselves settle things.  Indeed the DDE's settling things of itself here would be quite impossible in view of (a) the mere analysis-schema that DDE affords us on the one hand, and (b) the inherently uncertain nature of the 'inputs' that must be 'put into' that schema as employed in connection with the current health insurance reform bill on the other hand. 

Because (a) my own estimation of the probabilities involved here, as well as (b) my comparative valuation of the probability-weighted benefits and burdens themselves even prior to probability-weighting, and (c) the moral-and-legal relevance I attach to the 'intervention' wrought by the 'intervening decisions' of to-be-insured parties all unsurprisingly differ from Rick's (hence my earlier 'that's what makes horse races' remark in my last reply to one of Rick's thoughtful posts), I suppose it is also unsurprising in the end that DDE might settle little old me in favor of the legislation while not settling Rick in favor of the legislation, and perhaps even while settling yet others (with yet further differing probability assessments and comparative valuations) definitely against the legislation.    

On the matter of my probability estimates, I should emphasize that these are the product of several considerations.  Among these are (a) the initial intuitive expectations that (i) abortions are little if any less readily procured when not insured than when insured, while (ii) decisions to bring children to term and indeed raise them are significantly wealth-responsive; (b) a wealth of statistico-empirical studies, about the proper interpretation of which everyone of course can and always does seem to argue, tending to corroborate those intuitive expectations, as well as cognate studies correlating unwanted pregnancy rates with poor education and high poverty rates; and finally -- as well as quite crucially -- (c) careful analyses of the actual language of the Senate Bill, including Jost's and others cited inter alia by the Catholic Hospitals and the nuns, tending to indicate that there is little if any reason to think that bill apt even to permit any more aborting than is occuring right now.  Combine that with the intervening decision consideration, and compare it to the boost in the insured population by 32 million, the prohibition on unjust practices by oligopolistic health insurers, the guarantee of family insurance coverage to children until age 26, the CBO-estimated 1.1 trillion dollar cut to the federal deficit over the coming two decades, and the other salutary changes that the bill appears apt to bring that I've recited earlier, and I find the proportionality step of DDE pushing me strongly toward favoring the bill.  And this is so notwithstanding much disgust with this bill that I have described here in the past.

Finally, let me close by signing-on entirely to the expressions of hope found in Rick's final two paragraphs.  I've no belief what ever to the effect that the only way that a Catholic could oppose this bill would be by being indifferent to social justice or the Church's broader social teachings, and think it an offense for anyone to claim any necessary relation between those two characteristics -- just as it would be for anyone to claim any necessary relation between support of the legislation on the one hand and contempt for or indifference to the Church's full ethic of life on the other. 

Moreover, Rick probably knows me well enough by now to know that I'll certainly for my part be pursuing the agenda sketched in his penultimate paragraph whether the bill passes or no.  Indeed, as I've regularly urged here since December, I think a very salutary thing Catholics could be pushing for, quite independently of the fortunes of the current obviously imperfect bill, is regulation of the health insurance industry with a view to requiring all companies that offer abortion-covering policies also to offer otherwise-identical abortion-excluding policies.  Had we taken that step decades ago, we'd never have been faced with the need to engage in hair-splitting to figure out whether the House or the Senate bill better achieves the Catholic-regrettable need of abortion-neutrality.  For instead of hairs, we'd have split literally all the insurance policies instead. 

Thanks again,

Bob

Haldane: "Putting Ethics Back Together Again"

By Rick Garnett

John Haldane suggests, at Public Discourse, that "[m]uch of our moral confusion comes from our failure to find a replacement for the Judaeo-Christian outlook that once animated the West. We need, and generally now lack, a philosophical understanding of human life."  Part of the problem?:

We continue to use concepts and language that have their origins in a religious outlook, but we now lack the single coherent source for that use. We speak of “universal rights” and of the “equality of all people” but by any natural measure human beings are evidently unequal, so whence comes this elevated status and inviolability? We speak of the obligation to clothe the naked, and feed the hungry but whence comes that duty, if not from some broad notion of common membership in an all-inclusive moral community? And what can be a natural basis for this that can substitute for the religious idea of brotherhood?

Not only has the original foundation been lost sight of without an evidently adequate alternative being provided, but in losing touch with the source of moral meaning, our moral thinking has become confused. On the one hand we invoke the principle of the inviolability of innocent life in condemnation of the bombing of civilians, but on the other we set it aside when it comes to the matter of abortion. We assert the principle of non-exploitation in opposition to slavery yet countenance the creation of “sibling saviors” for the purpose of harvesting tissue from them. We deploy the language of innocence in relation to underage sex, yet switch instantly to talk of a right to gratification with the passing of a birthday. We assert the importance of community and of autonomy, yet legislate to restrict the latter in ways that will forseeably destroy the former. We oscillate between understandings of doctors, nurses, teachers and judges as motivated by vocations to serve the common good, and as salaried service-providers in a consumer economy. Little surprise, then, that we face confusing and apparently irresolvable conflicts. . . .

For me, double effect is relevant, but does not settle it: A response to Bob

By Rick Garnett

Thanks again, to Bob, for his having taken the lead in helping us all think through the health-insurance debate.  To be sure, the debate will continue, in many contexts.  Bob says, in his recent post, that "double effect settles it."  In my view, though, as important as the question that Bob calls "the principal question" is -- i.e., the "question of what the traditional Catholic moral principle embodied in the Doctrine of Double Effect (DDE), along with the familiar moral and legal principles of 'proximate causation' and 'intervening decisions,' might offer each Catholic of conscience wishing to assess the benefits and burdens apt to be brought by the health insurance reform legislation" -- it is not, for Catholics or for citizens, the only question. 

To be sure, a faithful, engaged, conscientious Catholic must satisfy herself or himself (as Bob has, of course, done) that "she would not be favoring the legislation with the aim of aiding or abetting the procurement of abortions."  I assume that none of my MOJ colleagues favor the legislation with this aim.

This brings us, then, to Bob's "provisional conclusion":  "since all empirical evidence seems to indicate that the legislation is apt actually to decrease the incidence of abortion overall, and at any rate certainly not to increase it, any burdensome feature of the legislation apt to be of concern to Catholics is in all likelihood vastly outweighed by its beneficial features."  This conclusion -- while certainly not irresponsibly or obviously wrong -- is not as warranted, in my judgment, as Bob thinks it is.  I'm pretty sure I am following all this as closely as Bob is, and trying as hard as he is to get the real facts, and to distinguish speculation from responsible prediction, and to "think with the Church", and I am also (therefore) pretty sure that some of the words Bob uses ("all", "certainly", "in all likelihood vastly") are not warranted.  But, to be clear, I have no doubt that Bob's conclusion is both reasonable and sincere.  I hope he thinks the same about mine.  (I have been frustrated by the suggestions, in a number of statements, writings, and posts by Catholics who support the proposal, that those of us who don't are disingenuously using "Catholic" or "pro-life" concerns to justify opposition that is merely partisan.  These suggestions are, in my view, cr*p.)

If this proposal becomes law -- I expect, and regret (and not only for abortion-related reasons, but also because I believe, with confidence equal to Bob's, that the proposals beneficial features will "in all likelihood" be outweighed by its burdensome features) -- I hope that those Catholics who support it, and who have worked for its passage, and who have taken on the responsibility of convincing other Catholics to support it, (i) will be equally dedicated in their efforts to do what they can to watch out for, avoid, and remedy any bad side-effects of what they regard as the proposal's good aims, (ii) will remain open to the possibility that their predictive judgments were, while reasonable, mistaken, and so to the necessity of revising the proposal (everyone, of course, should remain open to the possibility that their predictions will turn out wrong), (iii) will work to maintain (against the certain-to-come efforts to make the proposal more congenial to abortion funding than it is) whatever safeguards the law contains against public (direct or indirect) subsidization of abortion, and (iv) will work hard to secure "conscience" protections for hospitals and health-care providers.

It is not the case, though some Catholics have suggested that it is, that the only reason a faithful Catholic could have for opposing this legislation is a warranted concern that it would subsidize (directly or indirectly) abortion, increase the incidence of abortion, or entrench abortion rights in our law and culture.  I do have such a warranted concern, but even if I didn't, I would -- I think -- not support this particular proposal.  I have no doubt that "reform" is needed in the health-care sector, and no doubt that a just political community should find a way to secure good health -- not just "health care" but good health -- to all, and especially the poor. That the propsal under consideration is called a "health care" proposal, and that it aims to secure greater coverage for those who do not now have it, does not make it a "Catholic" proposal, or a proposal that Catholics -- including, of course, Catholics who aspire to be guided to faithful Citizenship by the Church's social teaching -- should, as Catholics, support.  Catholics not only may, but should -- just like everyone else -- be responsible stewards of the political community's resources and of the political community's future.   

Some news from our friend Pasquale Annicchino [UPDATE]

By Michael Perry

MOJ friend Pasquale Annicchino, Junior Fellow in the Law and Religion Programme at the University of Siena, writes to tell us:

"We are launching the University College London Human Rights Law Review 2009.  Judge Christos Rozakis will deal with the core question facing the development of the ECHR case-law:  National vs Universal Protection.

http://www.ucl.ac.uk/news/news-articles/1003/10031704

MOJ readers can download the entire volume at this link."

Thursday, March 18, 2010

Back to the Tradition: For Me, Double Effect Settles It -- We Should Embrace the Health Insurance Reform Legislation

By Steve Shiffrin

Hello Again, All,

Quite a few have been commenting in response to recent posts here reporting new developments in the unfolding debate, among Catholics and others, about the pending health insurance reform legislation.  A surprising number of these comments, from my point of view, concern legislative procedure, the contested question (as, among others, between the Bishops on the one hand, Catholic hospitals and nuns on the other) of the Senate bill's comporting or otherwise with the Hyde Amendment, and related questions that millions of non-Catholics as well as Catholics seem to be arguing about all over the nation right now.  I've offered replies now and then to some of these comments, but fear that I lack time to continue replying to all of them.  More importantly, I should also perhaps not even have begun to do so, as to my mind these narrowly targeted questions all distract us from what I have said repeatedly over the past week or so I take to be the principal question before us as Catholics.  That is, again, the question of what the traditional Catholic moral principle embodied in the Doctrine of Double Effect (DDE), along with the familiar moral and legal principles of 'proximate causation' and 'intervening decisions,' might offer each Catholic of conscience wishing to assess the benefits and burdens apt to be brought by the health insurance reform legislation.  In my view, as soon as a Catholic can be sure that she would not be favoring the legislation with the aim of aiding or abetting the procurement of abortions -- DDE step 1 -- she should proceed to DDE step 2 and work through a reasonably probability-weighted proportionality analysis, inflected with commonsense legal recognition that not all 'but for' causation is morally or legally relevant causation (my earlier interstate highway hypothetical).  As I myself work through that mode of analysis, I arrive at this previously reported provisional conclusion: since all empirical evidence seems to indicate that the legislation is apt actually to decrease the incidence of abortion overall, and at any rate certainly not to increase it, any burdensome feature of the legislation apt to be of concern to Catholics is in all likelihood vastly outweighed by its beneficial features.  Those include, again, inter alia: the extension of health insurance to 31 million more impoverished Americans than currently can afford it; the ensuring that the middle class who now have insurance will continue to be able to afford it; the prohibiting of unjust practices such as the denial of coverage for preexisting conditions and the removal of coverage when insurance policies actually are used; the saving of over a hundred billion federal dollars in the coming decade; the relaxing of health insurance company exemption from US antitrust regulation; the guarantee that children be able to remain on family insurance policies to age 26; and countless additional, albeit smaller, salutary effects.  That is the proverbial 'forest' here, it seems to me, by traditional Catholic moral-theological lights.  I welcome responses to that claim in the comments section.

Thanks as ever,

Bob

Top TPM Story: Catholics Divided Over Senate Bill

By Steve Shiffrin

Story here: http://tpmdc.talkingpointsmemo.com/2010/03/showdown-on-abortion-catholic-groups-faceoff-in-final-health-care-fight.php

I guess we're social beings after all . . .

By Rob Vischer

From the Compendium of the Social Doctrine of the Church (para. 149):

Human nature . . . is based on a relational subjectivity, that is, in the manner of a free and responsible being who recognizes the necessity of integrating himself in cooperation with his fellow human beings, and who is capable of communion with them on the level of knowledge and love.

From today's New York Times:

It may sound counterintuitive, but people who spend more of their day having deep discussions and less time engaging in small talk seem to be happier, said Matthias Mehl, a psychologist at the University of Arizona who published a study on the subject.

“We found this so interesting, because it could have gone the other way — it could have been, ‘Don’t worry, be happy’ — as long as you surf on the shallow level of life you’re happy, and if you go into the existential depths you’ll be unhappy,” Dr. Mehl said.

But, he proposed, substantive conversation seemed to hold the key to happiness for two main reasons: both because human beings are driven to find and create meaning in their lives, and because we are social animals who want and need to connect with other people.

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