Michael Sean Winters links to a letter, signed by a number of Catholic academics, that accuses Speaker Boehner of having a your voting record that "is at variance from one of the Church’s most ancient moral teachings" and that professes to aim to "reawaken [his] familiarity with the teachings of your Church on matters of faith and morals as they relate to governance." Certainly, it would be a good thing if Catholic public servants -- and, for that matter, Catholic academics -- came not only to greater "familiarity with" Catholic teachings on "matters of faith and morals as they relate to governance," but also to the sincere embrace of those teachings and of the Church's authority and obligation to propose them.
Certainly, there is nothing wrong with the composition and publication of such a letter and I have no doubt that many of those signed the letter embrace sincerely the Church's social teachings and believe in good faith that the Speaker's positions regarding taxes and spending are outside the bounds of faithful, reasonable efforts to apply those teachings. I believe, also in good (and equally well informed) faith, that those who believe this are (for the most part) wrong. And so it goes.
I want to speak, instead, to something that Michael said about the letter. Distinguishing between this letter, on the one hand, and the criticisms of Notre Dame's decision to honor President Obama at graduation two years ago, he notes that "President Obama is not a Catholic, so his disagreement with the Church on a range of issues, including abortion, has a different quality than Speaker Boehner's disagreement with the Church on vital issues. If a university wishes to have a Jewish or Muslim or Hindu graduation speaker, and confer an honorary degree upon him or her, should they not do so because that person denies the divinity of Christ?"
While I agree (of course) that it would be silly to withhold an honor from Obama for not believing in the Real Presence, it is a different thing, I think -- given what the Church teaches abortion actually is, and why it is actually wrong -- to refuse to honor a person, of whatever religion, who errs badly on a question of fundamental justice and who supports constructing and strengthening a legal regime that entrenches, and supports, this injustice. In addition, and with all due respect, the fact that President Obama is not Catholic does not deflect the concern that Notre Dame was, given all the givens and the relevant context, likely to be understood as saying something (about abortion, and about the gravity of the President's error on this matter of basic justice) that, as a Catholic university (and, Notre Dame is a Catholic university) it should not have said.
UPDATE: Michael Sean Winters responds to this post here. He notes, among other things, that the "graduation wars" are continuing at Catholic universities and suggests that, actually, this is not a bad thing. I agree: Not every skirmish is edifying or pleasant, but at least they suggest to us an engagement with the question, "given what we are, and aspire to be, what should, and should not, we be saying-through-honoring?" Responding to my post, he writes:
I do not think it serves either the Catholic identity of our institutions nor our efforts to protect the unborn to fail to engage those whose views of what justice demands differ from our own. I am glad there was controversy about President Obama’s appearance at Notre Dame. I am glad President Obama listened to Father Jenkins reiterate the Church’s concern for the unborn. I am glad that the entire country was reminded that we Catholics have not – indeed, cannot – abandon our defense of the unborn. But, that is not the only word of Christian ethics. It is only by engaging people who disagree with us that we can, with God’s grace, help them to see the error of their ways. And, a Catholic university is the perfect place for such an engagement.
To be clear -- I have no problem with, and in fact welcome, "engagement" with those who do not (yet, please God) see the injustice of our abortion-related legal regime, and agree with Michael that this engagement can and should happen at Catholic universities. My expressed concerns about the honorary degree for President Obama have always (I think) focused on (what I worried was) the "social meaning" or "expressive content" of the honor; I would not have objected, at all, to a prominent lecture by the President, on campus, notwithstanding his mistaken views on abortion (and other things).
I could, I am happy to admit, be wrong: It could be that what Notre Dame "said" when it honored President Obama was something different (e.g., "let's celebrate this wonderful step along the road to healing the damage caused to our political community by slavery, racism, and Jim Crow -- a road that was so important to Fr. Hesburgh"). But, I still have my concerns.
With the arguments in the Fourth Circuit dealing with the constitutionality of the PPACA now over, it appears that for the action/inaction argument to get off the ground (if it should get off the ground), some firm theoretical basis for making the distinction needs articulation. There are some niceposts over at Volokh discussing the basis for the distinction. In a previous post, I suggested that criminal law, like other fields, draws the distinction, and Jonathan Adler makes some arguments well worth considering about the classical liberal view of the importance of the distinction.
I want to offer a speculation here about the nature of the distinction, at least at criminal law, but possibly with applications to the Commerce Clause area, though I am not sure at all precisely how. The speculation is purely theoretical -- it's an attempt to begin to think about what the nature of the distinction between action and inaction might involve -- and so it does not depend on any specific limitations about what Congress can or can't do under Article I or any structural limitations that might apply in any given field.
My speculation is that at least one criterion through which the action/inaction distinction might be analyzed is control. Where a person is in a position to exercise a sufficient quantum of control over some external event, that person can be held (morally, legally) responsible. Generally speaking, it is appropriate to assign criminal liability, for example, when a person "acts" but largely, if not only, because a person is more likely to be in a position to control his actions than not. If a person is not able to control his actions, we do not assign criminal liability, oftentimes by excusing the person. That is, we regulate (through criminal law) many kinds of actions because people are generally -- in the main -- in control of their actions.
Conceptually, the very same thing might be true for omissions/inactions. In criminal law, one who is in a position of sufficient control over whether not to do something is often punish-worthy. Consider a statute criminalizing the failure to pay income taxes (referenced in one of the comment threads over at Volokh). The reason that inaction/omission is punishable in such circumstances is that individuals are in a position of consummate control over the decision whether to pay or not. No one objects to the lack of an act in such cases, and the reason is control. Or how about the failure to act when one has put another person in a position of danger. Again, the issue is that by taking charge of the situation by creating the danger to the victim, one has placed oneself in a position of greater control than would otherwise be the case.
If, for purposes of regulation (in the criminal sphere, or elsewhere), the question of control is key, that might indicate that there is no categorical divide between action and inaction. The critical issue, insofar as regulation is concerned, is the differential degree of control over what one chooses to do, and chooses not to do. While it will often be the case that one has greater control over one's actions than one's omissions, that certainly will not always be the case. Perhaps most importantly, the label of action or inaction will not itself be able to resolve the question of when control over an action/omission is sufficiently strong to warrant regulation.
UPDATE: In another interesting post, Orin Kerr explicitly raises the relationship between actus reus and omission liability in criminal law and the action/inaction distinction. Orin correctly notes that what makes it possible to punish for omissions is the existence of a duty to act, and he lists the traditional categories where such a duty exists. But for me, that only pushes back the inquiry a step. Yes, there is a duty in such cases. But the question is why we impose a duty. I think that the answer relates again to the issue of control. We have carved out certain categories of omission liability in criminal law because in those situations (e.g., parent-child relationships, entering into a contract, voluntary assumption to care for another person, creation of a danger to another -- see Orin's cruise control/pedestrian example), the person who omits to act has a substantially greater capacity to control the situation than do other people. Moreover, the advantage of my control explanation is that it can explain omission liability in those cases where there is not a traditional "duty" -- such as failure to pay your taxes.
I am trying to bone up (i.e., learn) as much as I can about constitutional history over the summer (and thereafter), and am constructing an aspirational, impossibly long, reading list for myself. I am trying to be worthy of this absolutely fabulous new text-book, which I am planning to use next spring.
While the subject is not related to CST proper, I'd be grateful for your suggestions in the comments about excellent books on the subject (and if there is a component of intersection with CST, even better). I am looking not so much for constitutional theory per se as for constitutional history with a distinctively legal (doctrinal or theoretical) valence. For example, first on my list is Akhil Amar's America's Constitution: A Biography.
This column by Dahlia Lithwick from a few days ago struck me as right on the merits, wrong on the manner of argument. And for those who think tone and style don't matter, so long as the arguments are right, I must disagree. Particularly with a subject as fraught as the justifiability of torture -- as seemingly dependent on who does what to whom, how recently one has suffered serious losses, how big the stakes appear to be -- the style of argument makes a big difference.
As I said, I agree on the merits with Lithwick (mirabile dictu). Torture is wrong, whether it leads to useful information or not. I also agree with the very different point, further down the page, that correlation does not necessarily imply causation. That is a worthwhile and important contribution, but it is an empirical point that requires -- not Lithwick's rhetorical splashing about -- but greater capacity to test the effectiveness of various techniques for eliciting information. As it stands now, there is a 'tu quoque' quality to the argument -- we don't know for sure that torture elicits reliable information, and we don't know for sure that it doesn't.
Having said that, I disagree almost entirely with the rest of the tone. First there is the languid, supercilious dismissiveness of others' views ("Do we have to have another national debate about torture? Really do we have to?"), as well as the characterization of anything which does not match up with the view advanced as "stupid" and "self-serving propaganda." "A bunch of Bush officials" are cast down for obloquy -- sui generis moral reprobates. But in reality, the debate endures because it is an enduring question. It would be a mistake to assume that with changed political circumstances necessarily come changed moral views. Indeed, there is a danger that when those whom one admires hold the reins of power, one is more susceptible of being blind to missteps.
Next, there is the puzzling statement that "the only reason we are having this discussion at all is because we have tortured people." But of course -- the only reason that we have discussions about nutrition is that people eat things. The only reason that we have discussions about the justification of punishment is that people commit crimes. The only reason that we have debates about self-defense is that people sometimes attack one another. If a matter is of human concern, it is often proper to have discussions about it. Torture is no exception.
Third, there is the proclamation that the discussion of torture attending the killing of Osama Bin Laden is a "national embarrassment" because we are not debating the effectiveness of other intelligence-gathering mechanisms. I do not understand why that should be embarrassing. I don't feel embarrassed. Other intelligence-gathering mechanisms may or may not carry the same moral freight as the torture issue. If they do not, then it is no surprise -- and certainly nothing to be embarrassed about -- that we are not talking about them in public fora.
Those that believe torture may be justified, writes Lithwick, "are now using half-facts and unverifiable assertions to ask another question: Does torture work? Unsurprisingly, they claim that it does. That's nice. Let's ignore them." I could not disagree more. Indeed, I take it that Lithwick herself, in writing this column, is not ignoring them. She is engaging with them. But the style of engagement leaves much, in this reader's view, to be desired.
My colleague, Lawrence Joseph, has been honored by the University of Michigan; its graduate library has recently acquired his professional and personal papers. Larry's most well-known book, Lawyerland, is a very interesting work of fiction about the law.
Joe Carter, of First Things, and of whom I am a big fan, has this essay, "The Lives Federalists Won't Save", that is -- with all due respect-- right about a lot, but also misguided about some things. Responding to Ron Paul's statement that abortion is strictly a matter for the states, Carter writes:
But as he tends to do on Constitutional issues, Paul puts his preference for procedure ahead of principle. If any level of government fails to do its duty in defending and protecting the lives of its innocent citizens, it is the obligation of the other branches to compensate for the failure in governance. Paul disagrees, preferring, when the two conflict, to defend federalism rather than the lives of the unborn.
Unfortunately, many pro-life conservatives share Paul’s libertarian view of federalism. They mistakenly assume that American-style federalism—a system that shares power between the federal government and state governments—is an inherently conservative philosophy. But federalism is a neutral philosophical position; it is neither conservative nor liberal. . . .
Readers should check out Carter's post in the entirety. My concern, in a nutshell, is that he has not separated clearly enough two questions that, in my view, need to be distinguished. The first is, "under our particular constitution, what are the powers -- that is, what are the scope and reach of the powers -- that have, in fact, been vested by We the People in the government of the United States?" The second is, "should questions about the rights and dignity of unborn children be decided at the state, or at the national, level?" It is certainly true, as Carter says, that federalism -- as a political theory, or as an institutional-design strategy -- ought not to be so fetishized as to obscure the moral obligation of a decent political community to protect the innocent and vulnerable from violence. But, to take seriously the possibility that, under *our* particular constitution, questions regarding the extent to which abortion may or should be regulated belong, generally speaking, to the states, which have the traditional police power, is not to fetishize federalism.
Carter writes, "[w]hile federalism has its place in deciding constitutional questions, its strict binary nature—either state or federal—is ultimately inferior to other principles of governmental demarcation, such as subsidiarity or sphere sovereignty." As a matter of political theory, I think Carter is quite right here. But, my own view is that when it comes to "deciding constitutional questions", we ought to consider the Constitution as positive law, and not as an occasion for philosophical competition among subsidiarity, federalism, nationalism, etc. Carter says it is a "central failing of federalism: the tendency to allow squabbles over power to trump matters of justice." With all due respect, constitutional law *is* about "power" -- it is about "who decides, and how?" It is not that questions of "procedure" are more important than "matters of justice", but it *is* the case that constitutional structure creates a framework -- a scaffolding -- for the resolution of "matters of justice."
Carter writes:
Conservatives should be for more checks and balances and limits on government, rather than a mere shifting of power from federal to state authorities. What does it reveal about our movement when conservatives (and libertarians) are defending limited government by advocating that state governments be allowed an increase in unchecked power and illegitimate authority?
Federalism can be useful in drawing up legitimate lines of Constitutional authority. But when it is allowed to transfer power to the states from other societal spheres, the philosophy merely establishes fifty separate laboratories of liberalism.
This is, or could be, an indictment of our Constitution -- that is, the indictment that, with relatively few exceptions, our Constitution (that is, We the People) leaves the police power, for better or worse, with the states, leaving them with the ability to function as "laboratories of liberalism" -- but I think Carter is begging the question when he suggests that "federalists" are proposing to merely "shift" power from the national government to the states. The "federalists'" claim, as I understand it, is that powers were, at the outset, vested here, and there, and that this vesting needs to be taken seriously (or undone).
Now that summer is almost here (I still have some grading to do), I'm looking forward to reading a few things that have been on my bookshelf for awhile. So, I was particularly happy to begin reading Eric Siblin's, Bach's Cello Suites between games at my son's soccer tournament this past weekend. Siblin's work usually focuses on contemporary rock. He came to the Cello Suites by accident when he attended a recital on a whim. In the book, he weaves together the story of J. S. Bach's composing of the Suites (itself a mystery as there is some question of whether his second wife, Anna Magdalena, had a role in composing the suites) with their accidental recovery by Pablo Casulis, the son of a anti-monarchist Republican Catalan. According to Siblin, Casulis discovered the then unknown Bach cello suites at age thirteen while on a walk with his father. He carried on his father's politics in his adult life by resisting Franco and eventually facing exile. Sibin writes that Causlis brought an unwavering commitment to his music and his politics. In an interview with Harpers (contains link to Youtube of Casulas playing Suite No. 1), Siblin suggests that "For Casals, the sovereignty of Catalonia was as natural and correct as infusing Bach with earthiness, dance, and humanity."
Aesthetic theory has been on my mind quite a bit lately, and the nature of the inexpressible in music, art and language. Last fall I read Fergus Kerr's Theology after Wittgenstein. Kerr speaks favorably of Stanley Cavell and his influence on Kerr's understanding of Wittgenstein. And so I picked up Cavell's The Claim of Reason and Must We Mean What We Say.
Now, after reading Cavell, I am looking for something in Siblin's book that might help me understand the Cello Suites and a person like Casulis, who could blend his passion for music and his politics so totally. There seems to be an aspect of language and of the mystery of the person that is methodologically excluded in philosophy today, even as it becomes more focused on consciousness. Can we doubt that it is significant for jurisprudence?
"Republican Gov. Mitch Daniels on Thursday signed into law a plan giving Indiana the nation's most sweeping private school voucher program." More here.
In my view, the policy-, constitutional-, and social-justice-based arguments for educational-choice-expanding programs is compelling.
In this WSJ book review of "More God, Less Crime", by Byron Johnson, James Q. Wilson concludes with this:
The second story that Mr. Johnson has to tell in "More God, Less Crime" is about what happens to academics—in his case, a criminologist—who turn their attention to religion. When he was a young scholar at Memphis State University (now the University of Memphis) in the mid-1980s, Mr. Johnson was told by his department chairman that none of his articles involving religion would count toward getting tenure. Though Mr. Johnson began publishing articles in academic journals about subjects other than religion, two years later he was fired. In his appeal to the dean, Mr. Johnson mentioned his publications and high student evaluations. The dean replied: "I don't need to have a reason," adding: "I can let you go if I don't like the color of your eyes."
With three small children at home, Mr. Johnson was desperate to save his job. He appealed to the provost, who told him: "You simply don't fit in here. I think you need to consider getting a job teaching at some small Christian college." The provost added, according to Mr. Johnson, that he would have "the same problem" at any other state university. Mr. Johnson then said to the provost: "If I were a Marxist we wouldn't even be having this conversation, would we?" The provost "nodded in agreement."
Mr. Johnson moved on to the University of Pennsylvania, where in the 1990s he continued to publish material on religion (even though the school is funded in large part by the state). In 2004, he took a job at Baylor University, a private Baptist institution, where he has been quite successful. His advice to young scholars: Get tenure before you start writing about religion.
