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.

Wednesday, August 15, 2012

Reid on Ryan on Rand

By Rob Vischer

My colleague Chuck Reid has a short essay on the Huffington Post raising questions about the tensions between Catholic social teaching and Paul Ryan's embrace of Ayn Rand.  An excerpt:

Ayn Rand, to her great credit, rejected racism emphatically. But she celebrated much of the rest of the social darwinist creed. There is no room in her work for cooperation, for community, for concern for the less advantaged. The maximization of individual productive capacity, freed of the impediments of state control, is the byword of her philosophy, so-called "Objectivism." The noble entrepreneur, the far-sighted man of wealth and power, the bold individualist who casts off the shackles of the "takers" and the "hangers-on," is the hero of her fiction. Without him, society itself would crumble to dust.

These philosophical premises, of course, stand in contradiction to the social thought of the Catholic Church, as developed over two millenia of experience. Paul Ryan surely knows this. His tepid protest that he reads the Bible and so cannot be a follower of Ayn Rand rings hollow. The record of his public life is that of a man in thrall to a curdled, warped individualism. I, for one, would like to know what he thinks about the magisterium of the Church regarding the positive value of the state.

Tuesday, August 14, 2012

Unscripted Praise for Paul Ryan from a Serious Democrat

By John M. Breen

As someone who is still a Democrat (though virulently opposed to the party’s radical pro-abortion agenda) I found the following heartening.  See the video in the link here.  In it, Erskine Bowles, former White House Chief of Staff under President Clinton, and co-chair of President Obama’s Nation Commission on Fiscal Responsibility and Reform, praises Paul Ryan:

“I’m telling you this guy is amazing. I always thought I was o.k. with arithmetic.  I’m telling you this guy can run circles around me.   He is honest.  He is straightforward.  He is sincere.  And the budget he came forward with is just like Paul Ryan.   It is a sensible, straightforward, honest, serious budget and it cut the budget deficit just like we did by $4 trillion.”

The link also provides some of the text of an op-ed piece in the Washington Post in which Mr. Bowles criticizes both Mr. Romney and Mr. Obama for their respective approaches to addressing the nation’s debt crisis through tax and spending policies – Romney for not closing tax loopholes, Obama for not reducing healthcare spending.  The entire op-ed is available here.

The tickets of the two parties are now set.  By all means, let’s have a serious, adult conversation about the policies advanced by the two sets of candidates.  Bowles has showed us how to begin that conversation.  This does not mean that any candidate should be somehow immune from criticism.  In a society that values freedom of expression how could it be?!

But it does mean that we not demonize candidates, no matter how strongly we disagree with them, and that the criticisms we offer be based on facts.  Bowles' example contrasts sharply with that of other Democrats, like Debbie Wasserman Schultz who in “not minc[ing] words” claims that Ryan “would be a nightmare for the middle class” and that he supports legislation that would “ban birth control” (here), and Vice President Joe Biden who in commenting on Romney and Ryan’s approach to banking regulation told a crowd in Danville, Virginia (a town that is 49% African-American) that “They’re gonna put y’all back in chains!” (here at 32:19).

Rep. Schultz and V.P. Biden are of course adults, so maybe the distinction shouldn’t be put in terms of “grown-ups” and “children” since it runs the danger of perpetuating the very discourse we seek to avoid.  Perhaps the distinction to draw is one between citizens who have a sincere party affiliation but who wish to engage others in good faith, and those who are hopelessly partisan.  The former are most welcome at MOJ.  There are plenty of other blogs for the latter.

 

 

Monday, August 13, 2012

Ryan on Death and Rehabilitation

By Marc DeGirolami

One of the most penetrating new writers in punishment theory is Meghan Ryan, particularly if one is interested in the relatively recent revanche of rehabilitation in Eighth Amendment law.  Her latest piece should be of special interest to Catholic thinkers, as it explores the relationship between the death penalty and rehabilitation.  Her core claim is that our understanding of the nature of rehabilitation has undergone fairly substantial changes.  To oversimplify, Ryan argues that an earlier understanding of rehabilitation emphasized internal or characterological reformation, while the later, and contemporary, understanding emphasizes the external effects of rehabilitation (for example, successful reintegration and the elimination of recidivisim).  It is these changes which account for the dissociation of death from rehabilitation.  As something of a rehabilitation skeptic, my concerns about the extraordinary ambitiousness of rehabilitation as a punitive ideal for the state to pursue were set on edge by Ryan's piece.  You should read her article in full (it isn't very long), but here is something to give you a sense of her ideas:

The Court’s presumption that capital punishment is completely irrelevant to rehabilitation, however, is faulty. Rehabilitation was one of the primary reasons that capital punishment was imposed in early America,and there are several stories of brutal murderers being rehabilitated on death row.  Further, the idea that capital punishment is relevant to rehabilitation animates various legal doctrines.  For example, the Eighth Amendment prohibits executing "insane" individuals because they lack the capacity to rehabilitate and ready themselves for death; the dying declaration exception to hearsay is rooted in the belief that an individual who believes his death is imminent will transform himself into a trustworthy source; and the value of finality, which is emphasized in much of courts’ capital habeas corpus jurisprudence, is premised on the belief that an offender must accept his sentence so that he can begin the desired rehabilitation process.

Aside from the importance of correcting the historical record, recognizing this overlooked relevance of capital punishment to rehabilitation highlights some important insights regarding the meaning of rehabilitation and its application in the capital context.

First, courts’ and scholars’ understandings of rehabilitation have changed over time. They have shifted from understanding rehabilitation as the offender’s character change to understanding it as revolving around an offender’s effects on society. Rehabilitation as character change animates the understanding of capital punishment in early America. It is also the species of rehabilitation that creates media frenzies around "transformed" death row inmates such as the killer Paul Crump, pickax murderer Karla Faye Tucker, and Crips co-founder Stanley "Tookie" Williams III. Further, character-change rehabilitation is at the root of various legal doctrines relying on death’s relevance to rehabilitation. Modern understandings of rehabilitation, though, focus more on an offender’s direct effects on society.  This understanding of rehabilitation is, as courts and scholars have concluded, irrelevant to the death penalty, because executed individuals clearly cannot reintegrate into society and thus their effects on society are more indirect.   

Additionally, recognizing rehabilitation’s relevance to capital punishment through its role in reforming offenders’ characters raises the question of whether a real opportunity for character transformation is an essential component of the human dignity to which every death row inmate is constitutionally entitled. The Court has repeatedly stated that the Eighth Amendment prohibition on cruel and unusual punishment is rooted in the idea that everyone—even a death row inmate—is entitled to human dignity.26 Scholars have suggested that this entails allowing even the worst of offenders to retain some autonomy, such as choosing their last meals and final words, and deciding who to invite to their executions.  This autonomy also involves the opportunity to transform one’s own character—an event that benefits both the offender and society more generally.o have a true opportunity to reform, however, death row offenders should be provided with greater rehabilitative resources, such as the opportunities to worship and to improve their educations.

This Article attacks the long-held position that death is irrelevant to rehabilitation and asserts that our legal tradition is based on the notion that facing death spurs rehabilitation.An offender who is isolated from the general population for ten to thirteen years and who is facing a near-certain premature death is considered to have greater motivation to repent and reform his character than an offender who is not facing the solemnity of death or a possible confrontation with his Maker.

Proud of the Ryan Pick

By Greg Sisk


I am just so dog-gone proud of the choice of Wisconsin Rep. Paul Ryan to be the vice presidential candidate on the Republican ticket. Wisconsin-silhouette-hi

Yes, I am proud as a fellow Cheesehead, having grown up in Wisconsin (and, like Rep. Ryan, a diehard fan of the Green Bay Packers).

And, yes, I am proud as a Catholic to see (at long last) a Catholic on a major party ticket who respects human life and is not a cheerleader for the abortion industry.  And, given that stewardship is one of our responsibilities as Catholics, I am pleased to see a political leader who rightly is worried about the suffocating federal debt that we are leaving to the next generation.

Most importantly, I am proud as a Republican to see Governor Romney make a principled choice of a man of substance, rather based on political calculations about appealing to this or that constituency or carrying this or that battleground state.

220px-Paul_Ryan_official_portrait
With Rep. Ryan on the Republican ticket, perhaps we can now have an adult conversation for a change in American politics.  I appreciate that others on the Mirror of Justice and elsewhere, not least including the American Catholic bishops, have serious reservations about many of his specific budgetary proposals.  Whatever one’s views about Rep. Ryan's proposals, this nomination now reframes the presidential election into one about ideas. 

Paul Ryan has long been one of the few leaders in public life with the courage to address the tough budgetary and entitlement issues and not try to duck them until after the next election or pass them on to the next generation.  The greatest threat our nation faces is the growing national debt, with deficits quadrupled during President Obama's first year in office, with a first-ever downgrading of the nation’s credit rating, with a failure of the Democratic Senate to even consider a budget, and with the national debt consuming ever larger portions of the national economy.  Without a concerted and immediate reduction in the national debt, we will be guilty of strangling opportunity for the next generation.

Democratic politicians avoid the national debt issue by pretending that President Obama’s ongoing record federal spending levels -– now reaching the levels of World War II –- can be sustained by raising taxes on the wealthy.  The richest are already paying most of the federal income tax -– the top ten percent of earners pay 70 percent of federal income taxes -- while 45 percent of Americans pay no income tax at all.  And the United States has one of the highest corporate tax rates in the world.

And Republican politicians avoid the national debt issue by pretending that cutting wasteful spending will balance the budget, without the need to make any difficult decisions.  But reductions in discretionary spending alone will make only a small dent, unless we give simultaneous attention to the massive size of entitlements,

Rep. Paul Ryan has been the grown-up in the room and forthrightly tells us that we cannot reduce the bloated national debt and put the economy back on an even keel without entitlement reform.  Democrats can always be expected to demagogue Social Security and Medicare reform, saying that Republicans want to push grandma’s wheel-chair off the cliff (as in the infamous liberal campaign ad from last year) (here).  In the face of real and anticipated Democratic attacks, Republicans then lose their nerve and fail to tackle the issue when they are in power.  And so it goes.

Whether you agree with every aspect of it or not, Paul Ryan’s budget doesn’t pull the punches or dodge the problem.  He forthrightly calls for entitlement reform that would preserve Medicare as it is for all those 55 and over and institute the necessary reforms to save it for the future. Paul Ryan Budget 2

According to the Bipartisan Policy Center (here), even under his own assumptions, President Obama’s budget would do little to lower the national debt over the next ten years (and the BPC assumes the most plausible scenario is that the debt will rise upward toward 90 percent of GDP).  Rep. Ryan’s budget would stabilize the national debt at about 60 percent of GDP within ten years.  (And, contrary to my colleague, Rob Vischer’s post, Ryan has not proposed “massive tax cuts for the wealthy,” but rather has proposed reducing tax rates while simultaneously simplifying the complicated tax code and closing loopholes for the wealthy.  We can debate whether the economic assumptions for revenue neutrality are correct, but the design is not to reduce revenues or shift tax burdens from the wealthy to the middle-class.)

Are Ryan’s proposal the right ones or the best ones?  Well, that’s the debate.  But it’s a debate we should have.  Let’s not slide past the most important economic issues for yet another election cycle and kick the can down the road once more.  By choosing Ryan, Governor Romney has asked for a great national discussion about our national debt.  It’s about time!

The Ryan nomination

By Rob Vischer

I'm guessing that we're going to be having this conversation repeatedly over the next few months, but I thought I'd kick things off by asking: Why does Paul Ryan propose tax cuts for the wealthiest Americans that go beyond even the Bush tax cuts?  (If the factual premise of the my question is wrong, then please point me toward information that can clarify things for me.)  I don't mean this question rhetorically or in any sort of snarky way.  Really, why would he embrace such massive tax cuts at this stage of American history, especially as someone committed to Catholic social teaching? 

I really want to like Paul Ryan -- not just because he went to college with my wife (a quick weekend search uncovered no incriminating party pics), or because he's pro-life, but because he is willing to have an honest conversation about the pressing need for entitlement reform.  He shows that our country's fiscal path is untenable, and that painful decisions need to be made.  But why embrace deeper tax cuts for the wealthy if that makes those decisions even more painful?

If Ryan and I were replaying a scene from Jerry Maguire (perhaps a disconcerting image in its own right), my line would be "You had me at entitlement reform."  Unfortunately, he may have lost me when he couldn't stop talking and insisted on "massive tax cuts."  Is this the sort of ideological pandering that is increasingly necessary to rise to the top in American politics?  (That is, while many Democrats race each other to the extreme edges on abortion-related issues, Republicans now do so on taxes?)  Or is there a good-faith, CST-inspired case for these particular tax cuts?

Stop being pro-marriage. You're just hurting children.

By Rob Vischer

I understand the modern reluctance to permit family law to get too far afield from the facts on the ground -- e.g., as cultural norms surrounding divorce changed, fault-based divorce laws gave way, in part, in order to prevent faithful but unhappy spouses from having to perjure themselves by fabricating tales of adultery.  I have a harder time understanding the emerging reluctance to permit extralegal normative standards from getting too far afield from the facts on the ground.  In family matters, does falling short of a standard require abandoning the standard?  In yesterday's New York Times, for example, Katie Roiphe implores us to "abandon the fundamentally frothy question of who is wearing a ring" in discussions of marriage and child-rearing:

If there is anything that currently oppresses the children, it is the idea of the way families are “supposed to be,” an idea pushed — in picture books and classrooms and in adults’ casual conversation — on American children at a very early age and with surprising aggressiveness.

Is statistical evidence of what contributes to positive outcomes for children still fair game?  Not really.  Though Roiphe cites one researcher whom she likes, in general, she is "not a huge believer in studies because they tend to collapse the complexities and nuance of actual lived experience and because people lie to themselves and others." 

So moralizing has no place in talking about marriage and parenting.  Statistics don't really belong either, it seems.  (Talk about setting up a debate that you can't lose!)  What are we left with?  A free-for-all of personal revelation dressed up as moral absolutes, such as this gem: "What the studies don't show is that longing for a married father at the breakfast table injures children." 

As a society, should we support the children of single parents?  Of course.  Should we refrain from saying that having married parents is good for kids?  The relevant statistics urge caution, but if we've moved beyond statistics in our efforts to capture "actual lived experience," then all bets are off.

Sunday, August 12, 2012

District Court Enjoins Philadelphia from Enforcing Outdoor Food Distribution Ordinance against Christian Groups

By Marc DeGirolami

Here's an interesting case from Philadelphia involving the religious mission to feed the homeless.  The City of Philadelphia enacted a local ordinance prohibiting the distribution of food free of charge to three or more people anywhere in the Fairmont Park System (picnics for individual families, school trips, and so on, as well as special events, were exempted from the ordinance).  The City's reasons for the ordinance had to do with civil order, sanitation, and also an asserted dignitarian interest on behalf of the homeless.  Several Christian religious groups had for decades distributed food to the homeless in the parks, but the mayor wanted these programs moved indoors.  A temporary relocation effort of one of the religious groups' food-sharing programs resulted in a drastic reduction in the number of homeless people who partook of the food-sharing services.

Plaintiffs sought a preliminary injunction prohibiting the City from enforcing the ordinance, alleging that the ordinance violated their rights under the Pennsylvania Religious Freedom Protection Act (PRFPA), which is essentially Pennsylvania's version of the federal Religious Freedom Restoration Act, as well as the First Amendment.  Readers will know that RFRA (as well as PRFPA) reinstated the interest-balancing test which preceded Employment Division v. Smith.  (One interesting feature of PRFPA is that it requires "clear and convincing evidence" as its standard for the "substantial burden" component).

The Court granted the preliminary injunction on PRFPA grounds (it avoided the constitutional issue).  It held that the plaintiffs (1) have a sincere belief that it is their religious obligation to "provide sustenance to the poor and needy" (and, added the Court, "Plaintiffs are not unique in this respect.  Acts of charity are central to Christian worship"); (2) the ordinance constitutes a "substantial burden" on the free exercise of plaintiffs' religion; (3) the dignitarian "compelling interest" offered by the City was "difficult to comprehend": "I am at a loss to understand how taking choice away from the homeless advances their dignity"; (4) even if reducing litter and other waste is a "compelling interest" (about which the Court expressed some skepticism, though my own view is that this is an appropriate and important concern), the City had not used the least restrictive means to achieve that interest (portable restrooms, trash compactors, additional maintenance staff, and other methods were raised by the Court).

One noteworthy item, which may have various broader applications.  In response to the City's claim that it did not burden the plaintiffs' free exercise because it did not impose "restrictions upon praying or preaching or reading the Gospel or engaging with the homeless [in the Park]," the Court said:

What defendants fail to appreciate is that to plaintiffs, sharing food with the poor is as much a form of religious worship as is prayer, preaching, or reading the Bible . . . . But defendants' argument is not persuasive for an additional and more fundamental reason. Essentially, defendants have assumed the authority to ascribe [to] some of plaintiffs' religious activities more religious significance than others, irrespective of the significance that plaintiffs themselves ascribe to their own religious activities. Defendants compound this error by offering to grant Rev. Little a limited exception for the food and drink she uses during her Communion service, which they characterize as a “core component of a religious service,” but not for the food Rev. Little shares with the homeless after the service despite the fact that Rev. Little considers this food an ongoing representation of the Communion observed during the service . . . . It is no more appropriate for defendants to “presume to determine the place of a particular belief in a religion” than it would be for me to do so.
 
The case is Chosen 300 Ministries, Inc. v. City of Philadelphia, 2012 WL 3235317 (E.D. Pa. Aug. 9, 2012). 

Saturday, August 11, 2012

A response to Morning's Minion on the Bishops' Religious Freedom efforts

By Rick Garnett

A recent post of mine led to some correspondence between Morning's Minion, of the Vox Nova blog, and me about the work of the Bishops' Ad Hoc Committee on Religious Liberty (which I serve as a consultant).  He called my attention to a post of his, from a few weeks back, in which he outlines his "concerns" with that work, and asked for my thoughts.  With his permission, I'm posting an edited version of my response to his request:

. . . With respect to your [concern that the Bishops' statements have been too nationalistic]:  On the one hand, I do think there are some aspects of American constitutionalism that are distinctively good, and my sense is that the Church has recognized as much.  (In various documents, for example, our separation-of-powers and checks-and-balances structures are praised.)  And, I think that the teaching in Dignitatis Humanae owes a lot to the American experience with religious freedom, warts and all.  That said, and obviously, religious freedom is a human right, not an American right; it is a gift from God, not from James Madison.  Still, I think it’s fine for a document, written by American bishops and addressed to Americans primarily, to highlight the centrality in the American experience – at least in its aspirations – of religious liberty.  True, in an academic paper, one would want to complicate the narrative, but the basic point is sound, and worth emphasizing:  Religious freedom is protected by modern democracies, true, but it was (at least aspirationally) protected here, first.  This something that we can celebrate, and try to live up to.

Your second concern, namely, that the Bishops' campaign sounds too much in a not-really-Catholic individualism is one that several more liberal Catholic bloggers have also voiced.  I agree that the Church’s religious-freedom teaching cannot be reduced simply to “conscience."  Still, it is clear to me that Dignitatis endorses, *at least for purposes of the juridical order*, the idea that the public authority should respect (to the extent possible, given the needs of public order) the religious conscience of all persons, because they are persons.  True, there is more to freedom than negative liberty, but I think Murray was right (and right in his understanding of DH) that, for the *limited* purposes of the juridical order, it is appropriate to “operationalize” religious freedom (in an incomplete way) through negative, constitutional restrictions on state actions that burden religious freedom.   I share concerns about excessive or un-situated individualism but, again, would insist that the freedom of the individual’s religious conscience is – even if it’s not the whole story – to be protected in law.  Can it be overcome by the needs of the public order and the common good?  Of course.  But the Bishops and the HHS-lawsuit plaintiffs never suggest otherwise.

You are right that the religious-freedom claims of religious institutions are meaningfully different from those of individuals, or of non-religious entities.  (The latter sound in "church autonomy" and "separation", for one thing.)  But, it does not follow from this that individuals and non-religious entities don't have religious-freedom rights, or that they should lose if they sue to vindicate those rights.  I think the way to think about it is that (a) the nature of the burden is different, when it is imposed on a religious institution, (b) but there can still be a burden in the case of an individual or a non-religious entity, (c) the strength of the *government* interest – the public-order, “compelling interest” interest – might be stronger in the case of a burden applied to an individual or a non-religious entity, and (d) the ease-of-accommodation will almost certainly be different.

So, as you say, the government cannot be expected to  give everyone a religion-based-conscience exemption from general taxation duties.  We agree.  But, the HHS case is different.  The mandate is NOT a generally applicable law (there are – to use a technical term – gabillions of exemptions) and it is NOT the extraction of money into the general government coffers. . . .

Finally, with respect to your third concern, i.e., that the campaign risks making the Bishops look partisan.  In my view, it just cannot be right that the Church, to avoid looking partisan, has to stand quiet on issues that are politically salient.  It is not the Church’s fault that it is Sec. Sebelius, and not Sec. Thompson, who is doing this.  (Nor is it the Church's fault that it tends to be Republicans who call for wrongheadedly severe immigration policies.) 

Romney-Ryan and Religion

By Michael Moreland

We'll have ample time to discuss here the subtantive implications of Governor Romney's selection of Congressman Ryan, but here are two interesting facts about today's announcement (and maybe there's something more profound here about the state of religion and politics today):

1. Paul Ryan is only the second Catholic on a Republican presidential ticket--the first was William Miller, the vice presidential nominee in 1964. (Sarah Palin was baptized a Catholic but left the Church with her parents as a child.)

2. This is the first major party presidential ticket in American history without a Mainline (or its derivations) Protestant on it. Nixon-Agnew in 1968 and 1972--a Quaker and a Greek Orthodox by birth--comes close (depending on how one characterizes Quakerism) but Agnew had converted to Episcopalianism by then.

Friday, August 10, 2012

"A very sober view of the state"

By Rick Garnett

Is what Christians should have, said Joseph Ratzinger in his 2006 Values in a Time of Upheaval.  "It is not the task," he said, "of the state to create man's happiness, nor is it the task of the state to create new men.  It is not the task of the state to change the world into a paradise . . . nor can it do so."  Two years earlier, in Truth and Tolerance, he had written, "Wherever politics tries to be redemptive, it is promising too much.  Where it wishes to do the work of God, it becomes, not divine, but demonic."

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