Some may find the following data and perspective, which come from Fr. Raymond de Souza, to be of assistance in discerning the truth in what is being widely reported as we move into Holy Week.
Sunday, March 28, 2010
Perspective on the hard work the NYT has been doing
Stupak did right but has to keep it a secret (I think).
If the federal courts behave as they have in the past (see the very solid USCCB analysis of prior cases), the new healthcare law, despite the slightly pro-life wording of the executive order, will dramatically promote abortion. Funding for elective abortion will be included in healthcare wherever it is not specifically excluded. So pro-life Representative Lipinski (D-IL) was prudent in voting against the bill and in stating: “I do not believe the last-minute effort to address these [pro-life] concerns through an Executive Order is sufficient because there is every indication that federal courts would strike down this order, and the order could be repealed at any time in the future."
But it is also true that the Administration's interpretation of the new law, through Obama’s EO, could positively affect the federal courts (especially the five justices on the Supreme Court who are more open-minded on abortion); those justices might ultimately say the EO provides a reasonable way to understand the law. Abortion will then (to some degree, though not perfectly) be excluded from healthcare funding where it is not specifically included. So Stupak was prudent in voting for the bill if that was the only way to get an ameliorative EO onto a bill that would have passed anyway.
But, it will be said, “By counting votes we can see that the Senate bill clearly could not have passed in the House without the help of Stupak and his group. So he could have altogether stopped an expansion of abortion funding, but settled (at best) for just limiting that expansion.”
Such a criticism may, however, be misguided. According to information I believe trustworthy, Pelosi had told Stupak that she had the votes to pass the Senate bill without any pro-life support, but she would have had to lean on a number of new Democratic House members from very conservative districts where voting for the healthcare bill would have greatly threatened their reelection in November. That is, the leverage Stupak had was not "If I and my group don't vote for this, it's dead." His leverage may well have been only "If I and my group don't vote for this, you'll have to call in votes from marginal districts and thus make it harder for the Democrats to keep their majority in the next election." In the latter context, getting a moderately pro-life spin on the bill via the EO was an achievement. It was arguably a deal worth making.
If I am right about the politics, then Stupak et al. voting against the bill (though perhaps making them look heroic, like General Custer) would have accomplished nothing legally and would have made pro-life Democrats look irrelevant rather than (as they do now) a group with some clout, one that must be dealt with.
But Stupak cannot come out and give this defense of himself in public, I think, because it would undercut the voter support for those marginal Democrats that Pelosi wanted to secure by her deal with his group, and would thus make her less likely to strike a deal with him again. Thus, perhaps, the poor guy has to put up with being accused again and again of having brought a federal abortion funding mandate to America when he knows that’s not true.
John Paul II on Understanding
A few recent posts struck me as having arrived at a felicitous moment. The first pair were Rick Garnett's posts on the fifth anniversary of John Paul II's death and on Catholic moral anthropology. A third was Patrick Brennan's post on understanding. They were particularly timely for me, having just returned from giving a short talk to a group of economists on the topic of John Paul II's moral anthropology.
A critical dimension of John Paul II's thought on the human person is related to the impossibility of comprehending the person. I mean that he believed that because the human person bears the image of God (imagio Dei), the person is incomprehensible as God is incomprehensible. This is a consequence of the Majesty of God and the noetic effects of sin. This is not to say that either God or the person is unknowable. God is absolute in being open to the human person. But, John Paul II's thought does not equate comprehension and knowledge. He sees persons as unfathomable in human knowing. It is not that the person is unknowable, indeed we can and do know others. It is as if we can always dive deeper and deeper into knowledge of the person, and yet never "touch bottom." And for that reason, we can never master intellectual control over human nature. And he affirmed that the mystery of the person is essential to our personal experience to being human. In Fides et Ratio, he taught that:
For John Paul II, the human person is a mystery to himself, and that mystery is tied fundamentally to human dignity. This dimension of the mystery of the person is deeply tied to Christian Neo-Platonism and the mystical tradition of figures like St. John of the Cross--the subject of John Paul II's doctoral dissertation written as Karol Wojtyla.Man is seized with the awe to see that he has been placed in the universe, in fellowship with others like himself with whom he also shares a common lot. This is the beginning of the journey which will lead him to discover new realms of knowledge. Without this sense of wondering amazement, man would subside into deadening routine and would bit by bit lose the power of leading a proper personal life. (Section 4)
A deep difficulty with much of modern thought is that it seeks to avoid the mystery of the person by reducing the person to a conceptualization over which one can achieve intellectual control and dominion. In doing this, it creates an idolatrous image of God within the human person. Kenneth Schmitz has called this the "secularization of the interior." For John Paul II, this secularization has to do with the exclusive preference for mental objects (intentionality) in modern epistemology and philosophy of mind, which seems to preclude knowledge of unfathomable truth. (He differs from Lonergan on this point).
John Paul II's critique of modernity seems particularly applicable to Analytic philosophy, which underwrites much of contemporary Anglo/American jurisprudence. And post-modernists fair no better. For them, the Other is absolutely unknowable, not unfathomable. By denying the possibility of knowledge of the Other, post-modernity replays the modern reduction of knowledge to conceptual control and then denies its possibility. And therefore, post-modernity is only hyper-modernity--modernity turning its critique back on itself.
For John Paul II, the truth about the person is approached indirectly, through the analysis of the lived experience of moral action. While he did not deny any aspect of the Thomistic metaphysical account of the person, he believed that it was incomplete (as any account is) and in need of a personalist account of the subjective experience of acting with moral purpose. This was the starting point of his moral philosophy. And, his analysis of such experience informs us that human beings know one another most perfectly in shared acts of charity and love--acts in which the mystery of the Other can be honored and venerated.
He warned us that a proper understanding of the person is essential for avoiding the totalitarianism that he experienced in his youth. The political and economic systems of Fascism and Soviet communism that he endured were out-workings of misunderstandings of the person. Assuming away the mystery of the person is perhaps the ultimate modern fantasy. It renders God and humans as beings among beings, and thereby undermines the Majesty of God and the Dignity of the human person.
It seems quite likely that over the next thirty years or so, Catholic conceptions of the dignity of the person will confront new, in some ways unprecedented, challenges brought about by the economic decline of Europe and the US, the cultural consequences of globalization, and emergence of new technologies that will radically question what it means to be human. John Paul II speaks to us today by cautioning that in confronting these challenges Catholics must adhere to the mission of seeking to know the truth.Let me close by encouraging you to read, this Holy Week the "Ode for the 80th Birthday of Pope John Paul II" by Czeslaw Milosz. I quote the last stanza:
I have turned on the comments.You are with us and will be with us henceforth.
When the forces of chaos raise their voice
And the owners of truth lock themselves in churches
And only the doubters remain faithful,
Your portrait in our homes every day remind us
How much one man can accomplish and how sainthood works.
Thoughts on the Clergy Abuse Scandal
My good friend and former student, Fr. Jim Goins wrote the following:
Celibacy only works when the celibate submerges sexual desire into a deeper desire for union with the Divine. Sexual repression, on the other hand, is lethal and corrupting of the entire community. The abuse scandal still swirling around the priesthood is a failure on many levels, including priestly formation. Candidates for priesthood must be taught to be men and not kept at the emotional level of an eighth grade boy. The vast majority of priests are able to move from boyhood into manhood and perform well as celibate priests. Still, the widespread instances of abuse suggest a systemic failure within our seminary system.
Even though most priests overcome the challenges of celibacy, mandatory celibacy is, in my opinion, an increasingly unproductive law of the Church. We must be allowed to ask if the discipline of mandatory celibacy is now sending the wrong sign to the world: a sign of sexual isolation and nefarious behavior. A married clergy is not without its own problems but would signal the intention of the Church to bring its clergy into the rich life of our moral center: the family.
What follows is not meant as an excuse for the actions of the Church. Rather, I hope to simply point out the reality of how society once treated sins and crimes against children.
Secrecy was not invented by the Roman Church. Until the mid 70's, the standard response to revelations of child abuse was to keep the matter private. It was believed the child would be seen as 'damaged goods' and the family shamed beyond repair. Catholic Bishops kept these secrets because they were taught that secrecy was in the best interests of the child. Shocking now, I concede, but, at the time, all institutions within society conspired with the silence.
The Church's habit of sending offenders to treatment rather than turning them over to the law now strikes us as odious. However, for years the best minds of psychology taught that such disorders could be treated and the men safely rehabilitated. As it turns out, the advice was absolutely wrong. Until the late 80's or early 90's, Bishops believed they were acting 'progressively' by spending small fortunes on men who 'suffered' from attractions to children. Would that they have acted counter culturally.
Finally, we must acknowledge that, despite the extreme damage done by the Church's failures, real progress has been made to keep children safe in Catholic parishes and schools. We are currently doing more background checks, more training, more monitoring than any other institution. Out of the ashes of this scandal, something good is emerging. Let us pray it is not too late.
Saturday, March 27, 2010
Understand?
In 1949, Wittgenstein wrote the following:" The older I grow the more I realize how terribly difficult it is for people to understand each other, and I think that what misleads one is the fact that they all look so much like each other. If some people looked like elephants and others like cats, or fish, one wouldn't expect tem to understand each other and things would look much more like what they really are." When I read this the other day, it really got my attention. I'll grant that understanding one another can be work, sometimes (but not necessarily always) very hard work. I think here of Longergan and what he says about the task of fidelity to the transcendental precepts: Be attentive, be intelligent, be reasonable, be responsible! But Longergan also holds that sometimes love floods our hearts, and when it does the usual order by which we come to understand is reversed. Setting Lonergan aside for now, though, the question I'm pondering is what our Catholic faith teaches about our capacity to understand one another. Is the task of interpersonal understanding (necessarily?) as fraught with difficulty as communication between, say, cats and fishes? Obviously, the answer to this question has serious ramifications for the possible success of communicative theories of law (and the competing non-communicative theories of law).
Media Attention to Sex Abuse Crisis
Several of our recent MOJ posts have addressed the recent media coverage of the sex abuse crisis. Although I agree with Rick that John Allen's piece does a good job in helping us keep perspective, I am far less persuaded than he is with the value of the Elizabeth Lev piece. Lev ignores the fact that the greatest anger and protest now is not with the abuse itself (which is why claims that only a small minority of priests have committed abuse or "we're not the only ones who have been guilty of abuse" are beside the point), but with how the Church handled the abuse. There are some who portray all such reporting as anti-Catholic, which ignores that many of those who are angry and protesting the Church's behavior are Catholics.
I, for one, think E.J. Dionne's Washington Post piece makes some important points. Regarding Dionne's closing note, Rick focuses on the portion of Dionne's statement suggesting that the Church cast aside its lawyers. Rick is, of course, right that one can not cast off one's lawyers when one is being sued. However, I do think Dionne is right to suggest that what is needed here is "institutional self-examination, painful but liberating public honesty, and true contrition." I share the sense of many that there has been far too little evidence of the first and the second and, while some contrition has been expressed, it has been largely expressed as sorrow for the abuse itself rather than how the abuse was dealt with.
Mirror of Justice: Back to Basics
My previous post, regarding the anniversary of Pope John Paul II's death, got me interested in digging even further back into the vault. Here is Mark Sargent's inaugural "welcome" post, that went up on Feb. 3, 2004:
Welcome to Mirror of Justice, a group blog created by a group of Catholic law professors interested in discovering how our Catholic perspective can inform our understanding of the law. Indeed, we ask whether the great wealth of the Catholic intellectual and moral tradition offers a basis for creating a distinctive Catholic legal theory- one distinct from both secular and other religious legal theories. Can Catholic moral theology, Catholic Social Thought and the Catholic natural law tradition offer insights that are both critical and constructive, and which can contribute to the dialogue within both the legal academy and the broader polity? In particular, we ask whether the profoundly counter-cultural elements in Catholicism offer a basis for rethinking the nature of law in our society. The phrase "Mirror of Justice" is one of the traditional appellations of Our Lady, and thus a fitting inspiration for this effort.
A few things about this blog and us:
1. The members of this blog group represent a broad spectrum of Catholic opinion, ranging from the "conservative" to the "liberal", to the extent that those terms make sense in the Catholic context. Some are politically conservative or libertarian, others are on the left politically. Some are highly orthodox on religious matters, some are in a more questioning relationship with the Magisterium on some issues, and with a broad view of the legitimate range of dissent within the Church. Some of us are "Commonweal Catholics"; others read and publish in First Things or Crisis. We are likely to disagree with each other as often as we agree. For more info about us, see the bios linked in the sidebar.
2. We all believe that faith-based discourse is entirely legitimate in the academy and in the public square, and that religious values need not be bracketed in academic or public conversation. We may differ on how such values should be expressed or considered in those conversations or in public decisionmaking.
3. This blog will not focus primarily on the classic constitutional questions of Church and State, although some of our members are interested in those questions and may post on them from time to time. We are more interested in tackiling the larger jurisprudential questions and in discussing how Catholic thought and belief should influence the way we think about corporate law, products liability or capital punishment or any other problem in or area of the law.
4, We are resolutely ecumenical about this blog. We do not want to converse only among ourselves or with other Catholics. We are eager to hear from those of other faith traditions or with no religious beliefs at all. We will post responses (at our editorial discretion, of course.) See "Contact Us" in the sidebar.
5. While this blog will be highly focused on our main topic, we may occasionally blog on other legal/theoretical matters, or on non-legal developments in Catholicism (or on baseball, the other church to which I belong.)
6. We will be linking to relevant papers by the bloggers in the sidebar. Comments welcome!
And, here is my first substantive post, on "Law and Moral Anthropology":
One of our shared goals for this blog is to -- in Mark's words -- "discover[] how our Catholic perspective can inform our understanding of the law." One line of inquiry that, in my view, is particularly promising -- and one that I know several of my colleagues have written and thought about -- involves working through the implications for legal questions of a Catholic "moral anthropology." By "moral anthropology," I mean an account of what it is about the human person that does the work in moral arguments about what we ought or ought not to do and about how we ought or ought not to be treated; I mean, in Pope John Paul II's words, the “moral truth about the human person."
The Psalmist asked, "Lord, what is man . . . that thou makest account of him?” (Ps. 143:3). This is not only a prayer, but a starting point for jurisprudential reflection. All moral problems are anthropological problems, because moral arguments are built, for the most part, on anthropological presuppositions. That is, as Professor Elshtain has put it, our attempts at moral judgment tend to reflect our “foundational assumptions about what it means to be human." Jean Bethke Elshtain, The Dignity of the Human Person and the Idea of Human Rights: Four Inquiries, 14 JOURNAL OF LAW AND RELIGION 53, 53 (1999-2000). As my colleague John Coughlin has written, the "anthropological question" is both "perennial" and profound: "What does it mean to be a human being?” Rev. John J. Coughlin, Law and Theology: Reflections on What it Means to Be Human, 74 ST. JOHN’S LAW REVIEW 609, 609 (2000).
In one article of mine, "Christian Witness, Moral Anthropology, and the Death Penalty," I explore the implications for the death penalty of a Catholic anthropology, one that emphasizes our "creaturehood" more than, say, our "autonomy." And, my friend Steve Smith (University of San Diego) has an paper out that discusses what a "person as believer" anthropology might mean for our freedom-of-religion jurisprudence that fleshes out excellent article. I wonder if any of my colleagues have any thoughts on these matters?
Comments are open!
Pope John Paul II
We are approaching the fifth anniversary of the death of Pope John Paul II (the late Holy Father died on April 2, 2005). I was thinking about this, and so went back and read a bunch of our posts from that time, including this one of mine ("John Paul II and the Law: A First Try") which I put up on April 3:
I'm sure that many of us are reflecting on the effect that the Holy Father had on our faith and lives, and thanking God for the gift of his ministry and example. It also makes sense, here on MOJ, for us to consider what the Pope's work and thought might mean for law and legal theory. A few thoughts:
First, many of the Pope's writings focus on the importance of culture as the arena in which human persons live, thrive, and search for truth. His was not a reductionist Christianity -- one in which the choices and hopes of persons drop out of the analysis, and are replaced merely by one "dialectic" or another. Nor is Christianity merely a matter of a rightly ordered interior life. We are precious and particular, bearing the "weight of glory," but also social, relational, political -- and cultural. And, he recognized, law both shapes and is shaped by culture.
Second, the Pope returned again and again to the theme of freedom. Certainly, for lawyers -- and particularly for lawyers living and working in our constitutional democracy -- questions about the extent to which law can and should liberate (and, perhaps, liberate-by-restraining?) are appropriately on the front burner. It's fair to say that John Paul II proposed an understanding of freedom -- and of its connection with (T)ruth -- that contrasts instructively with the more libertarian, self-centered understanding that seems ascendant in our law (particularly our constitutional law) today.
Third, I imagine we will be working out for decades the implications of the Pope's proposal that the God-given dignity of the human person, and the norm of love, richly understood, should occupy center-stage in our conversations about morality -- rather than utilitarian calculations, historical movements, or supposed categorical imperatives. This proposal seems particularly powerful when it comes to the matter of religious freedom.
Finally, there is the (perhaps, at first) surprising fact that, at the end of the 20th Century, it was a mystical Pope who "stepped up" and reminded a world that had been distracted, or perhaps chastened, by reason's failures, and had embraced a excessively modest, post-modern skepticism, of the dignity and proper ends (without overlooking the limits) of reason.
There's a lot more to say, of course. I would, for what it's worth, encourage any MOJ readers who work with or advise law journals to consider commissioning essays, or even symposia, on John Paul II's jurisprudential legacy.
Comments are open (as they were not, five years ago). By the way . . . it seems weird to be talking and thinking about five-year-old blog-posts. In any event, since many of us have written about the matter, it might be nice other MOJ-ers shared (or perhaps, as I have done, just re-posted) some anniversary reflections on the CST work and legacy of John Paul II and its connections to the Catholic legal theory project.
John Allen on Benedict and Clerical-Abuse Scandal
John Allen -- who occupies the regrettably lonely but richly deserved (not the lonely part) position as "journalist on things Catholic who seems to be respected by everyone, even those who seem to disagree about everythign else" -- has this piece, "Keeping the Record Straight on Benedict and the Crisis", in the National Catholic Reporter. A bit:
. . . Despite complaints in some quarters that all this is about wounding the pope and/or the church, raising these questions is entirely legitimate. Anyone involved in church leadership at the most senior levels for as long as Benedict XVI inevitably bears some responsibility for the present mess. My newspaper, the National Catholic Reporter, today called editorially for full disclosure about the pope's record, and it now seems abundantly clear that only such transparency can resolve the hard questions facing Benedict.
Yet as always, the first casualty of any crisis is perspective. There are at least three aspects of Benedict's record on the sexual abuse crisis which are being misconstrued, or at least sloppily characterized, in today's discussion. Bringing clarity to these points is not a matter of excusing the pope, but rather of trying to understand accurately how we got where we are. . . .
Health Care Reform (5): Future Scenarios
[This is the last in a series. You can view the full series on one page here.]
The Congressional Budget Office reports that
President Obama’s budgets will push the national debt to 90 percent of Gross
National Product. Former CBO
director Holtz-Eakin concludes
that the health care legislation will raise the deficit by half a trillion
more, not reduce deficits as the CBO reported based on Obama administration
assumptions. The Treasury
Department may lose the AAA rating for U.S. Bonds (here). Foreign creditors are unlikely to keep
buying American debt (here).
Something’s got to give. And health care will hardly be exempt
from the financial crisis and economic dislocation ahead. The Obama-Democratic health care plan
is neither economically viable nor political sustainable in the years ahead.
So where do we go from here?
The Most Pleasant But Least Likely Scenario
The most pleasant, if least likely, scenario is
that the Patient Protection and Affordable Care Act of 2010 will afford
universal health care coverage, ensure quality and secure health care for all
Americans, and reduce the national debt – all at the same time, just as
promised by President Obama, Speaker Pelosi, and Majority Leader Reid. We can all join hands, sing “Kumbaya,”
and skip joyfully into the promised land of milk and honey.
My grim forecasts of burgeoning government, national insolvency, eroding individual freedom, and declining health care – the subjects of my posts all this week – will be shown up as the depressing interjections of a foolish pessmist. But, to quote an Eagles song from the 1970s, “I could be wrong. But I’m not.”
The Most Likely and Most Unsatisfactory
Alternative Scenarios
If over the next few years, the costs of the new
universal health care entitlements prove to be as high as I anticipate and the
savings turn out to be as illusory as I believe, then it is unlikely that
Congress will or can allow President Obama’s health care program to proceed to
full operation as planned. At the
very least, Congress likely will choose to trim back on the more ambitious
elements of the Patient Protection and Affordable Care Act of 2010. As the debt piles ever higher and the
economy fails to meet its full potential because of competitive from government
borrowing and the drag of higher taxes, Congress will conclude that the country
simply cannot afford the liberal Democratic dream carried through to a slender
congressional majority this past week.
Indeed, if irresponsible spending (see here)
leads us to brink of national insolvency, as some western European nations are
experiencing and as we have seen at the state level in California,
implementation of the program may be truly impossible. After the CBO predicted far higher
deficits over the next decade than the White House had been saying, Obama’s own
budget director acknowledged
that the national debt burden on the economy “would not be sustainable.”
In this event, two alternative options may be presented, neither of them palatable. First, and sadly most likely, Congress will abandon the most expensive of the provisions, that which extends government-run health care to tens of millions of the uninsured. As we’ve seen before, when liberals overreach and put too much faith in government as a solution, whether it be in education, housing, urban planning, or now health care, the most vulnerable in our society suffer the most when the house of cards collapses.
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