When Anthony Weiner resigned his congressional seat in a "sexting" scandal, few people thought that a Republican would be elected to serve the remainder of his term. Fewer still imagined that a conservative Catholic Republican could win. After all, the district (New York's 9th) is overwhelmingly Democratic and heavily Jewish. It was formerly represented by New York's current senior senator, Charles Schumer. But yesterday, in a stunning upset, Catholic conservative Bob Turner defeated Jewish liberal David Weprin, with Turner scoring big among Jewish voters---especially Orthodox Jewish voters (despite Weprin's self-identification as an Orthodox Jew).
So what happened?
The media are certainly right to point to the bad economy and the growing distrust of President Obama by Jewish voters as a result of policies that are viewed as less than supportive of the state of Israel. But there is an underreported aspect of the story that should be of considerable interest to Catholics and especially to MoJ readers.
In the run up to the election, a group of Orthodox rabbis, most from Brooklyn, but including others, notably Rabbi Shmuel Kamenetsky and Rabbi Simcha Bunim Cohen, two nationally prominent Orthodox Jewish authorities, published a letter stating that "it is forbidden to fund, support, or vote for David Weprin." The reason? As a member of the New York state legislature, Weprin, despite his Orthodox Jewish beliefs, voted to redefine marriage to include same-sex partnerships. This, the rabbonim declared, was chillul Hashem---a desecration, or bringing of shame, on God's name. The rabbis went on to say that "Weprin's claim that he is Orthodox makes the chillul Hashem even greater."
Catholics, of course, will immediately recall controversies in recent years about the statements and actions of bishops who have criticized (and in some cases excluded from Holy Communion) Catholic politicians who support abortion and embryo-destructive research. Those with lengthier memories will also recall the controversy in the 1950s surrounding New Orleans Archbishop Joseph Rummel's decision to excommunicate three Catholic members of the Louisiana state legislature for defying his teaching against support for segregationist polilcies.
The letter from the rabbonim went farther than anything I recall Catholic bishops saying by asserting that under Jewish law "it is incumbent on every Jew" to support and vote for Weprin's opponent, "if the opposing candidate is committed to safeguarding the moral values that made made this Republic great, including the educational, religious. and parental freedoms of Torah adherents, defending family values, opposing abortion on demand, protecting the moral environment, opposing the radical LGBT (To'aiva) agenda, including opposing legislation of civil unions, as well as defending the security of our brothers internationally, particularly in Eretz Yisroel."
In the new Commonweal, I review Paul Horwitz's The Agnostic Age. I'm not sure how far the book ultimately takes us in terms of sorting out religious liberty quandaries, but it raises some fascinating questions while providing a fresh take on the quandaries themselves. He asks us to acknowledge the possibility that the religious claim underlying a dispute could potentially be true before deciding the claim's legal weight -- i.e., taking an agnostic stance toward the claim's truth value. An excerpt from the review:
Horwitz thinks that greater empathy for religious claimants would lead to greater liberty, with constitutional agnosticism essentially putting a thumb on the scale in favor of the claimant. Thumb on the scale or not, we are still faced with the vexed question of how to balance the claimant’s interests against the state’s. Horwitz insists that taking the stakes of these cases seriously “does not demand that we go past our breaking point.” But his constitutional agnosticism does not help us identify the breaking point any better than any other theory of religious liberty. We can all agree that the state should reject religious arguments for child sacrifice, but most real cases are not that easy. In a few states, permitting Catholic Charities to exclude same-sex couples from its pool of adoptive parents went too far. The French state has decided that just wearing an Islamic veil in public goes too far. It is not clear how the empathy of Horwitz’s constitutional agnostic would bear on either case.
. . . . Constitutional agnosticism, he explains, “honors Pontius Pilate’s question—‘What is truth?’—but condemns Pilate’s shrug.” So what, the reader might ask, should Pilate have done as a constitutional agnostic? The crowd calling for crucifixion was making religious truth claims—that Jesus was not the son of God, and that describing himself as such amounted to blasphemy against the one true God. Should Pilate have deferred to the potential truth of those claims and ordered crucifixion with more enthusiasm and less hand-wringing? If Pilate had stepped in to protect Jesus, it probably would not have been because of empathy for Jesus’ religious-truth claims, but because of respect for a shared human value that is squarely within the earthly law’s ordinary domain: human life should be protected. More work to identify the bedrock values that define our “breaking point” would provide a more helpful—though still frustratingly messy—path through the maze of religious-liberty disputes than any effort to assume the truth of claims that lie beyond our collective grasp.
A recurring theme here at MOJ is the role of urban planning in fostering (or failing to foster) communities. This story about a new 24-acre park in Philadelphia built by the University of Pennsylvania seems to me a nice illustration of some subsidiarity-related themes, particularly the contribution of private, subsidiary institutions to the common good in a challenging urban environment:
Penn bought the 14-acre lot in 2007 and combined it with existing land to create the 24-acre Penn Park. It features two athletic fields, a multipurpose stadium with 470 seats, a tennis center, and parking for 210 cars. In addition, there are two acres of open space and a picnic grove. The park, which has 530 newly planted native trees, gives the urban campus breathing room and offers everyone a new vantage point for viewing Center City. When the site was a parking lot, only the postal drivers who used it could appreciate the expansive sweep of skyline from the west bank of the Schuylkill. Now that the area is accessible to all, it gives visitors a "big sky" view of the city, said David Hollenberg, an architect for Penn. "It's Philadelphia's Montana."
Penn Park is bordered by Walnut Street to the north, Amtrak rails to the east, SEPTA tracks to the west, and South Street to the south. It's accessible via three walkways, from Walnut, South Street, and Franklin Field. Built with donations and university funds - no public money - the park was difficult to redevelop, said Anne Papageorge, vice president of facilities and real estate services at Penn. The park sits in a bowl and is crossed by three rail lines: Amtrak, CSX, and SEPTA. Under the asphalt of the former parking lot were unstable layers of rubble, cobblestones, and dredged silt. When construction began two years ago, workers spent the first couple of months driving 2,200 pilings from 20 to 55 feet long into the ground to support fields and berms. "There's a lot of work below ground that no one sees," Papageorge said. The soil also was too poor for planting trees or grass. "Not even a teaspoon that we could use," said Laura Solano, a landscape architect for Michael Van Valkenburgh Associates, which designed the park. Caravans of trucks dumped 45,000 cubic yards of planting soil to create berms and swaths of open space. Architects created a varied landscape around the two regulation-size athletic fields. Under the CSX trestle that cuts through the length of the park are small hills covered with grass as thick as shag carpet.
Following up on Mike's post below, I also thought that this column, "If It Feels Right...," by David Brooks about a study by Christian Smith (Notre Dame) involving the moral sensibilities of young people was interesting. Some of the findings are roughly consonant with what I have observed anecdotally in my Professional Responsibility classes, a watery libertarianism -- the loose and somewhat quick, but nonetheless entrenched, sense that it is generally inappropriate, or at least bad form, to tell others how to act appropriately -- the 'who-am-I-to-tell-others?' reflex answer, which now elicits my own semi-automatistic 'who-do-you-have to-be?' response. Part of the reason I enjoy teaching criminal law is the ineradicably interdictory quality of the course: we seem to be able to agree that murder and rape are wrong (though, from the study, it doesn't look like we can agree any longer about the morality of drunk driving, or cheating in various contexts).
But one feature of Brooks's column surprised me:"When asked to describe a moral dilemma they had faced, two-thirds of the young people either couldn't answer the question or described problems that are not moral at all, like whether they could afford to rent an apartment or whether they had enough quarters to feed the meter at a parking spot." One would have to read the study itself, as this might have something to do with the subjects not understanding what was meant by a moral dilemma, but I would have thought that the moral dilemma was a fairly hearty perennial. Yet, if this study is accepted, it seems that people may be losing their sense of what a hard moral choice is, let alone the even harder choice between two conflicting and incompatible moral imperatives.
Traditionally, the moral dilemma has been analyzed as a phenomenon of Greek tragedy and the modern period, with an unfortunate hop-scotch over the medieval period. Writers and thinkers in the medieval period, it has been assumed, had little to say about moral dilemmas. But in a new book that I have been greatly enjoying, Moral Dilemmas in Medieval Thought: From Gratian to Aquinas (discussed here), M.V. Dougherty explores the moral dilemma as considered by medieval writers. Perhaps the most fun and interesting of the chapters is one on the Majorcan Franciscan Raymond Lull, in which Lull, after disputing with himself for days and upon recognizing his inability to escape moral wrongdoing, reacts to the perplexity of the moral dilemma by turning to petitionary prayer. Professor Dougherty writes: "By the time Raymond turns to prayer, he does not expect an epistemic solution to his moral dilemma. That is, his perplexitas is not going to be solved with more information or the uncovering of some unconsidered alternative that he might pursue on his own accord. Lull's judgment that he is perplexus leads him to cease searching for ad intra resolutions, and he believes that only ad extra intervention by God will save him from moral wrongdoing." (98) The power of the moral dilemma on his mind was so great that Lull thought he could not be saved from it through his own resources. True or not, that condition of sensing that one could not do right in a particular situation of conflict speaks to the pungency with which the moral dilemma was at one time experienced. I highly recommend the book.
Those of us teaching in colleges and law schools should take note of David Brooks's column today summarizing the findings of a study by Notre Dame's Christian Smith of the moral lives (really the folk moral philosophy) of 18 to 23 year-olds:
Rejecting blind deference to authority, many of the young people have gone off to the other extreme: “I would do what I thought made me happy or how I felt. I have no other way of knowing what to do but how I internally feel.”
....
Smith and company found an atmosphere of extreme moral individualism — of relativism and nonjudgmentalism. Again, this doesn’t mean that America’s young people are immoral. Far from it. But, Smith and company emphasize, they have not been given the resources — by schools, institutions and families — to cultivate their moral intuitions, to think more broadly about moral obligations, to check behaviors that may be degrading. In this way, the study says more about adult America than youthful America.
....
Many of these shortcomings will sort themselves out as these youngsters get married, have kids, enter a profession or fit into more clearly defined social roles. Institutions will inculcate certain habits. Broader moral horizons will be forced upon them. But their attitudes at the start of their adult lives do reveal something about American culture. For decades, writers from different perspectives have been warning about the erosion of shared moral frameworks and the rise of an easygoing moral individualism.
That all seems plausible enough, though it may just mean that 18 to 23 year-olds are Humeans on the question of moral motivation. Of course, those of us who are Aristotelians knew all along that young people can be inarticulate about the moral life:
Hence a young man is not a proper hearer of lectures on political science; for he is inexperienced in the actions that occur in life, but its discussions start from these and are about these; and, further, since he tends to follow his passions, his study will be vain and unprofitable, because the end aimed at is not knowledge but action. And it makes no difference whether he is young in years or youthful in character; the defect does not depend on time, but on his living, and pursuing each successive object, as passion directs. For to such persons, as to the incontinent, knowledge brings no profit; but to those who desire and act in accordance with a rational principle knowledge about such matters will be of great benefit. Nicomachean Ethics, 1095a2-11
The European Union has long been an exhibit for aspects of Catholic social thought, and not surprisingly so--several of the "Founding Fathers" of the EU (Jean Monnet, Robert Schuman, and Konrad Adenauer, for example) were deeply influenced by Catholic social thought, and popes ever since John XXIII have been outspoken advocates of European integration. But things are not going well in Europe right now, to put it mildly (thorough Der Spiegel story here, commentary by FT's Wolfgang Munchau here, h/t Tyler Cowen). Although subsidiarity is a constitutional norm in the EU, see George Bermann, Taking Subsidiarity Seriously: Federalism in the European Community and the United States, 94 Colum. L. Rev. 331 (1994), the current crisis strikes me as a cautionary tale about free-floating concepts from Catholic social thought unmoored from a sufficiently determinative conception of the common good and solidarity (economic crises have a way of doing that), with a good measure of the usual human tale of avarice, corruption, and incompetence thrown in.
I recently gave an interview to Laura Inglis of the Intercollegiate Studies Institute. Laura is a talented young constitutional scholar who did her D.Phil in U.S. Constitutional History at Oxford. Our conversation was wide ranging, but at one point touched on the question of natural law in legislative decision making and in adjudication:
LI: How do you think natural law should affect a) judges and b) legislators in their day-to-day work?
RG: Legislators should always be guided in their deliberation, judgment, and action by principles of natural justice. Their exercises of prudence in protecting and advancing the common good, must always be shaped by their grasp of what is due to citizens as a matter of right and wrong, a matter of justice. As for judges and their day to day work, the role of principles of natural justice is less straightforward. Certainly in a constitutional system such as ours, judges are not authorized to play a legislative role or to substitute their judgments of what natural law and respect for natural rights requires for the contrary judgments of those empowered by the Constitution to legislate for the sake of the common good. The mission of judges is not to make law, but, rather, faithfully and impartially to apply the law as made by the ratifiers of the Constitution or legislators acting pursuant to the Constitution. Judges go wrong--they act in violation of the Constitution--when they usurp authority vested by the Constitution in other officers (i.e., legislators and executive officers). In interpreting the Constitution, fidelity to the Rule of Law, which is itself a key principle of natural law, requires that judges respect the constitutional limits of their own authority.
St. Augustine's press has just published Josef Pieper's "The Christian Idea of Man". (Order it, and read more, here.) It's hard to imagine a subject better suited for consideration by those interested in Catholic Legal Theory!
Five years ago today, Pope Benedict XVI delivered what I thought, and think, was a profound and important (if widely misunderstood and misreported) address at the University of Regensburg. The address was called "Faith, Reason, and the University." Read it (again) here.
Continuing the conversation with Prof. Baur, Hadley Arkes sends in this:
Rick Garnett and my friends on the Mirror of Justice have been kind enough to play the exchange between Professor Michael Baur and me under conditions that may resemble a chess game played over long distance and long intervals. . . .
But we had something of importance we were both trying to think through. And so let me omit the sword play, on who might have misunderstood, or misrepresented, whom—and try to recall the central questions that will remain, even if Professor Baur and I recede from the scene.
