Friday, October 19, 2012
A "Catholic Economic Vision"?
Ekins: "The Nature of Legislative Intent"
In an earlier comment thread involving the contest between original meaning and original intent and the
question whether there continue to be intentionalists out there swimming against the tide (do see Patrick Brennan's very good piece responding to Lee Strang's fine work), Jeff Pojanowski kindly called my attention to Richard Ekins's work on intent-based theories of interpretation.
I want now to note that Professor Ekins's new book, The Nature of Legislative Intent, has just been issued by Oxford University Press. I haven't gotten hold of a copy yet, but you can see a little bit of the book here. I'm really looking forward to this one, especially the chapter on joint intention and group agency which may well have broader application beyond the constitutional interpretive issue (always got criminal law on the brain...).
Thursday, October 18, 2012
Chief Rabbi Lord Jonathan Sacks
Last night I had the joy of getting together with my esteemed friend Chief Rabbi Lord Jonathan Sacks, who was at Princeton to give a lecture based on his new book on religion and science. His talk was characteristically brilliant. Religion is ubiquitous in human society, but religious geniuses are rare. Britain, an officially Anglican nation, produced a Catholic religious genius in Queen Victoria's time: John Henry Newman. (True, he began as an Anglican.) It has produced a Jewish religious genius in ours: Jonathan Sacks. In his exemplary humility, the Chief Rabbi would be embarrassed by the comparison, but it is, in my opinion, fully warranted. He is a teacher of people of every faith, and even those who, for now at least, are without faith. Speakers who come to Princeton often say that they are honored to be speaking at our University. In this case, the speaker truly honored the University by his presence.
Wednesday, October 17, 2012
"We're only concerned for the integrity of the teachings of the Catholic Church"
Some of our friends at Commonweal seem to have figured out that I mean to express contempt for the claim made by signers of "On All of Our Shoulders" (some of whom themselves reject central moral teachings of the Catholic Church) that "we do not write to oppose [Paul] Ryan's candidacy" but are concerned only "for the integrity of the teachings of the Catholic Church." Good for them. Contempt is warranted by the statement's tendentiousness; its stunning one-sidedness; its lack of interpretative charity (and, for that matter, justice); its laying aside foundational principles of Catholic social teaching, such as the sanctity of human life and the importance to society of marriage as a conjugal union; and the timing and other circumstances of its release. If those responsible for the statement want serious intellectual engagement from those of us who do not share their views, they can put out a serious statement, free of tendentious claims and characterizations and laughable pretensions to non-partisanship. There are people among the signers of "On All of Our Shoulders" who are capable of writing such a statement. Let them do it. Then we'll have a serious discussion, if they like.
The Weight of Glory
Last night, I attended a brilliant talk hosted by the University of Minnesota's MacLaurinCSF, the campus's Christian study center (which, under the leadership of the energetic Bryan Bademan, is thriving in its mission of "Strengthening Christian thinking & bridging Church and University"). The talk was by Roger Lundin, Arthur F. Holmes Professor of Faith and Learning at Wheaton College, on the topic: "No Ordinary People: C.S. Lewis on the Life of the Mind and the End(s) of Love."
Lundin focused on this 1942 sermon of C.S. Lewis, "The Weight of Glory" which ends with these brilliant words. I wonder how different a Presidential debate (and for that matter, all political discourse) might sound if THIS were on the forefront of everyone's minds?
The load, or weight, or burden of my neighbour's glory should be laid daily on my back, a load so heavy that only humility can carry it, and the backs of the proud will be broken. It is a serious thing to live in a society of possible gods and goddesses, to remember that the dullest and most uninteresting person you talk to may one day be a creature which, if you saw it now, you would be strongly tempted to worship, or else a horror and a corruption such as you now meet, if at all, only in a nightmare. All day long we are, in some degree, helping each other to one or other of these destinations. It is in light of these overwhelming possibilities, it is with the awe and the circumspection proper to them, that we should conduct all our dealings with one another, all friendships, all loves, all play, all politics. There are no ordinary people. You have never talked to a mere mortal. Nations, cultures, arts, civilization -- these are mortal, and their life is to ours as the life of a gnat. But it is immortals whom we joke with, work with, marry, snub, and exploit--immortal horrors or everlasting splendors. This does not mean that we are to be perpetually solemn. We must play. But our merriment must be of that kind (and, in fact, the merriest kind) which exists between people who have, from the outset, taken each other seriously--no flippancy, no superiority, no presumption. And our charity must be a real and costly love, with deep feeling for the sins in spite of which we love the sinner--no mere tolerance or indulgence which parodies love as flippancy parodies merriment. Next to the Blessed Sacrament itself, your neighbour is the holiest object presented to your senses. . . .
Brad Lewis on religious freedom, the common good, and the mandate
Here's Prof. Bradley Lewis (CUA), in the Oxford Journal of Law Religion, on "Religious Freedom, the Good of Religion, and the Common Good: The Challenges of Pluralism, Privilege, and the Contraceptive Services Mandate":
The right to religious freedom is properly grounded in religion’s status as a fundamental and irreducible human good, which is nevertheless related to other goods and social in character. Its protection for persons and groups is therefore also a component of the common good of political society. After arguing for these propositions on broadly Thomistic philosophical grounds, the article discuses and answers three recent challenges. The first is based on a perceived conflict between recognition of the good of religion and pluralism and I argue that this objection can be met by distinguishing between different kinds of pluralism, most of which pose no problem to the thesis. A second objection comes from those outside the Thomistic tradition, who either reject the status of religion as a good deserving of explicit legal recognition and protection or accept it on inadequate grounds. The objections, I argue, are based on accounts of religion that are inadequate to the role it plays in sound practical reason. Finally, I discuss an argument from those within the Thomistic tradition who accept some limitations on religious freedom in the name of the common good. This third challenge is linked to the current controversy over the application of the US federal government’s insurance mandate to religious organizations and the US Catholic bishops’ response to it as an issue of religious freedom. Here I argue that the objection is based on a misunderstanding and misapplication of Aquinas’s account.
Tuesday, October 16, 2012
The Vice Presidential Debate and Abortion: That’s Just Joe Being Joe!
A number of Catholic Democrats, including, no doubt, a number of MOJ readers, have long been admirers of Vice President Joe Biden. And this is entirely understandable. Throughout his political career the self-described “boy from Scranton” has proudly touted his working class background, his Catholic faith, and his Irish roots (see here). Moreover, Joe Biden has often cited his religion as one of the reasons he pursued a career in public service, and there is no reason to doubt his sincerity in this regard.
Still, over the years the longtime senator from Delaware has demonstrated an uncanny knack for factual misstatements and political gaffes (see here and here) – the not infrequent extemporaneous comment that often leaves his political opponents shaking their heads in disbelief and his political supporters excusing these rhetorical miscues as “That’s just Joe being Joe!” (see here).
One would expect that for the Vice Presidential Debate – the chance to address a national audience, in a closely contested election, following a poor showing by the President in the first debate – that Mr. Biden would be especially well prepared to deliver a gaffe-free performance. Moreover, given the emphasis placed on abortion at the Democratic Party’s convention (see here and here), and the great distance between the stated positions of the Obama-Biden ticket and the Romney-Ryan ticket on the life issue (see here), predicting a question on abortion was about as close to a sure thing as happens in politics.
But what voters heard was not a thoughtful answer to a question that everyone could have anticipated. Instead what Mr. Biden delivered was another gaffe, another “Joeism.”
The problem began with how moderator Martha Raddatz framed the question. (The debate transcript is here, the video is here).
This debate is, indeed, historic. We have two Catholic candidates, first time, on a stage such as this. And I would like to ask you both to tell me what role your religion has played in your own personal views on abortion. Please talk about how you came to that decision. Talk about how your religion played a part in that. And, please, this is such an emotional issue for so many people in this country.
Father James Martin, S.J. (here) found Raddatz’s question problematic because it shows that “many journalists tend to reduce all of Catholicism to a single issue,” namely, abortion.
But that is only one problem. Another and I think deeper problem is that many journalists have enormous difficulty seeing opposition to abortion outside the prism of religion.
Ramesh Ponnuru (here) summarizes this point nicely:
Martha Raddatz framed the question about abortion badly by bringing up religion, a frame that encourages people to think about the question in church-state terms that are both misleading and favorable to one side of the discussion. In response, Biden said that he accepted the Catholic Church’s alleged “doctrine” that life begins at conception in his “personal life” but would not impose it on others.
Raddatz’s errant framing of the issue suited Mr. Biden just fine. He plainly stated: “I accept my church’s position on abortion as a – what we call a de fide doctrine. Life begins at conception in the church’s judgment. I accept it in my personal life. But I refuse to impose it on equally devout Christians and Muslims and Jews, and I just refuse to impose that on others . . . .”
In describing the Church’s support for the view that life begins as conception as part of the deposit of the faith – “de fide” – as Biden mumbled almost inaudibly, a matter of divine revelation – Mr. Biden committed another Joeism . . . and this one was a dandy. According to Biden, belief in the humanity of the unborn child is equivalent to belief in the Incarnation, the Holy Trinity, or the Real Presence of Christ in the Eucharist, and as such is something that may not be enacted in law.
Although guided by sacred scripture, the Church does not in fact ground her belief in the humanity of the unborn child solely on divine revelation. As Ponnuru notes:
The Church does not, in fact, teach as a matter of faith that life begins at conception. It recognizes the scientific fact that conception marks the beginning of the life of a human organism — a member of the human species — and teaches as a matter of morals that we have obligations in justice to this being. Biden does not accept this teaching, and it is not clear that he even understands it.
Indeed, the Catholic bishops of the United States would surely be surprised to learn that their teaching on abortion – specifically the belief that human life begins at fertilization – is a matter of faith. In a document they issued in 1998 entitled Living the Gospel of Life (here ¶ 24) they pointedly responded to Biden’s claim in what might be described as the verbal equivalent of an ecclesiastical smack-down:
[S]ome Catholic elected officials have adopted the argument that, while they personally oppose evils like abortion, they cannot force their religious views onto the wider society. This is seriously mistaken on several key counts. First, regarding abortion, the point when human life begins is not a religious belief but a scientific fact—a fact on which there is clear agreement even among leading abortion advocates. Second, the sanctity of human life is not merely Catholic doctrine but part of humanity’s global ethical heritage, and our nation’s founding principle. Finally, democracy is not served by silence. Most Americans would recognize the contradiction in the statement, “While I am personally opposed to slavery or racism or sexism I cannot force my personal view on the rest of society.” Real pluralism depends on people of conviction struggling vigorously to advance their beliefs by every ethical and legal means at their disposal.
Before his election as pope, when he was head of the CDF, Joseph Ratzinger made a similar point. In its Doctrinal Note on Some Questions Regarding the Participation of Catholics in Political Life (here ¶ 5) the CDF likewise repudiated the canard that pro-life legislation is an offense against pluralism and an attempt to impose the Christian faith on others:
[N]o Catholic can appeal to the principle of pluralism or to the autonomy of lay involvement in political life to support policies affecting the common good which compromise or undermine fundamental ethical requirements. This is not a question of “confessional values” per se, because such ethical precepts are rooted in human nature itself and belong to the natural moral law. They do not require from those who defend them the profession of the Christian faith, although the Church’s teaching confirms and defends them always and everywhere as part of her service to the truth about man and about the common good of civil society. Moreover, it cannot be denied that politics must refer to principles of absolute value precisely because these are at the service of the dignity of the human person and true human progress.
Mr. Biden began his response to the question on abortion by saying:
I've been a practicing Catholic my whole life. And it has particularly informed my social doctrine. Catholic social doctrine talks about taking care of those who — who can't take care of themselves, people who need help.
A more informed journalist might have responded: “Mr. Biden, I understand Catholic social doctrine impels you to support policies that help take care of people who can’t take care of themselves. Doesn’t Catholic social doctrine include the unborn among those who are vulnerable, who can’t take care of themselves? If so, why do you oppose laws that would protect them?”
The problem seems to be that journalist seem incapable of asking following up questions to politicians who advocate a pro-choice position. Is it too much to ask that journalists rediscover or develop the knack for asking the uncomfortable questions of pro-choice politicians?
As Mollie at Get Religion (here) observes, there are any number of questions Raddatz could have asked Biden by way of follow up:
[H]ow about asking him whether he could envision any limitations on abortion at all, whatsoever? How about asking him if he thinks it should be legal to kill an unborn child simply because that child is a female? How about asking him if he thinks that there is anything wrong with terminating a pregnancy because the fetus has Down syndrome?
Likewise, Raddatz might also have asked Biden about his earlier support for a Human Life Amendment, his opposition to the Freedom of Choice Act (something Mr. Obama supported) his support for the Partial Birth Abortion Ban (something Mr. Obama opposed) or his support for the Born Alive Infant Protection Act (something Mr. Obama opposed) (see here). Is it too much to ask that the stark contrast between the President and the Vice President on the treatment of unborn human beings be explored?
I know that we live in an era in which the Church is reaping the poor harvest of many years of deficient catechesis. Still, is it really too much to ask that a person who publicly identifies himself as Catholic – indeed, wears his Catholic identity on his sleeve – should be able to state with accuracy what the Catholic Church teaches and why when he publicly rejects that teaching as a source that might inform his views on a matter of public policy?
Moreover, is it really too much to ask of such a person that he explain – in a principled fashion – how it is permissible for his religion to influence his approach to public policy on some matters but not on others?
Even if some find this too demanding, is it really too much to ask that the Vice President of the United States know that Planned Parenthood is the nation’s single largest abortion provider? Is it too much to ask that before he defends Planned Parenthood that Mr. Biden know that the organization itself reported performing 985,731 abortions over three years, from 2008-2010? (see here). Yet at a campaign rally held the day after the debate Mr. Biden said that the Republicans want to defund Planned Parenthood “which by law cannot perform any abortions.”
I’m sure that statement by Mr. Biden comes as much of a surprise to the leaders of Planned Parenthood as Mr. Biden’s claim that the Church’s belief in the humanity of the unborn child is a belief that the Church holds “de fide” comes as a surprise to the bishops of the Catholic Church.
But hey, maybe that’s just Joe being Joe!
A Complement to Professor Moreland’s Post
As Mike picked up on the Peppard op-ed piece in today’s New York Times (I wonder if the Times would be interested in publishing Mike’s posting as another op-ed?), there is need to comment on the lead editorial which appeared in the same edition of this journal. [HERE]
The Times continues to show little understanding of or respect for views with which it disagrees. In the context of this editorial, the editors conjure up the imaginary horribles that would emerge if Roe v. Wade “goes.” The editorial asserts that since Governor Romney and Congressman Ryan are “opponents of abortion rights,” supporters of this “right” should be worried. It was kind of the editors to suggest that the Republican nominees have a view that “depart[s] slightly from the extremist Republican Party platform.” But this editorial fails to consider that it is the other party which may now have and push the extremist platform. I offer this suggestion in view of the fact that the ability to seek an abortion is considered a “human right” by the Times. To reinforce its position, the sagacity of the Guttmacher Institute and the Center for Reproductive Rights is relied upon along the good works of the “invaluable family-planning group” Planned Parenthood. The editorial concludes by retelling the tragedy of a young woman who died from the complications of an illegal abortion. This is a tragedy without question, but the Times fails to consider that she might have also died from a legal abortion. Would that have not been a tragedy? Moreover, the Times disregards the statistic that since Roe was decided, almost fifty-million young Americans have died as a result of “legal abortions” performed in the United States since 1973. This is a tragedy of enormous proportion, yet the Times is silent about it.
If the Times were genuinely interested in all the tragedies that can be avoided by honoring all authentic human rights considerations, the worries about Roe’s fate could disappear from its opinion pages forever. How might this occur? Back in October of 2007, I offered some thoughts on the matter regarding the disappearance of Roe and the consideration of alternatives to criminalization, which troubles the Times. Here is the relevant portion of what I said then:
Let us first begin by considering the duties of the law-maker (for us in the US, this means state legislatures, Congress, judges, and administrative agencies) that relate to abortion. The law-maker can make a law that criminalizes abortion, legalizes abortion, or regulates abortion. The law-maker may say nothing about morality in positing the law (statute, judicial decision, or regulation) made on the subject.
Moreover, the law-maker may be urged to conclude by the lobbyist or the litigant that the law made must be divorced from moral considerations. This argument has run a thread throughout jurisprudential debate for some time. Two examples would be the Hart-Fuller debates and the disagreements between the Kelsen school and the Rommen/Voeglin schools. Yet, when all is said and done, there frequently are discussions about morality and its nexus with the law and law-making when debates about tax laws, labor laws, education laws, environmental laws, and criminal laws (just to mention a few) occur. The Guttmacher Institute mentions, by the way, on its website that it executes its mission, in part, by “testifying before federal and state legislative bodies and in court cases.” Well, this is participating in the law-making process, and we can readily see what their aspirations are for law-making outcomes regarding abortion and where moral considerations don’t fit into the process.
And what about Catholic legal theory? There is nothing wrong or unusual with introducing moral considerations into debates that occur when law is being made. But, for the Catholic legal theorist I think this would be not only expected but would be compulsory. Moreover, I am confident that Catholic legal theory would have much to offer the law-maker who is positing law addressing the legality or regulation of abortion. And what might this be?
The moral considerations underpinning Catholic legal theory would enable the law-maker to consider more or all rather than some of the issues that must inevitably intersect abortion laws. Today so much of the law in this country pertaining to abortion permits abortion—with few restrictions—and bases the justification on Constitutional requirement (which I submit results from an erroneous interpretation in the Roe progeny), the argument from privacy, and, more recently, the argument from equality. The focus of abortion law seems to be on the welfare of the mother only. This becomes patent when judges, state and Federal, scrutinize legislation and regulation looking for the “essential” health exception clause to protect the mother only.
Catholic legal theory, in contrast, begins to look at other welfares, too. The mother’s health and welfare are surely important; but so is the health and welfare of the child whose life will be snuffed out should the abortion proceed. But it is also vital to recognize that the mother has other issues that are often ignored or dismissed as long as she can be allowed to terminate her pregnancy. What might these issues be? Well, informed consent is a place to start. Does she really know what is about to happen? Does she really understand what is inside her womb? Would she want to have an abortion if she could see her child? (Ultrasound imaging would provide her with this critical information.) Has she been provided with education about effective parenting skills? Is pre and post-natal care available for her and her child to ensure good health for both? Catholic legal theory would also provide for the welfare of the father? Where is he? Should provision not also be made for encouraging his responsibility for the life he helped promote by developing among other things his parenting skills? It seems that the law-maker is not restrained from including these provisions relating to these matters as well. Cannot the law-maker provide for orphanages, foster care, and adoption services for children whose birth parents will not or cannot properly care for the raising of the child?
Indeed, the law-maker can provide for all these things and more.
But the critic may well argue that the additional elements will cost money. The Catholic legal theorist can respond by reminding the critic that laws addressing defense, environment safeguards, historical preservation, criminal justice, wildlife protection, etc. (all of which have moral considerations) also cost money. But in spite of their cost, laws are made to advance these interests and protections. Why can the law not do the same to preserve young human life and the lives of those responsible for its conception? This is the response of one Catholic legal theorist.
I think these points still have merit today in 2012. I also am confident that they will have merit in the long term, too.
If the Times, Planned Parenthood, and the Center for Reproductive were truly concerned about human rights and human life, the death of the young woman who died from consequences of the illegal abortion won’t be repeated in the future and neither will the deaths of the tens of millions of children whose lives have been snuffed out by so-called legal abortions. It is clear that Roe and its progeny remain a problem, but it is a problem that can be remedied by laws which respect the dignity of a woman who may face any abortion and the dignity of the young children whom the Times, Planned Parenthood, and the Center for Reproductive Rights disregard.
RJA sj
(More) Pre-Election Confusion about Abortion from the New York Times
Perhaps it’s asking too much for arguments (most especially on the topic of abortion) touching on Catholicism and politics on the cusp of an election to be coherent, but this op-ed in today’s New York Times by Fordham theologian Michael Peppard is remarkably specious. So far as I can tell (the essay conflates legal, philosophical, and canonical terms throughout, with folk political observations along the way), Peppard believes that because Congressman Ryan (a Catholic) takes the following positions, Ryan is similarly situated with regard to dissenting from Catholic teaching as Vice President Biden and should be placed on (in Peppard’s crude, frivolous phrase) “wafer watch:”
- While affirming that life begins at conception, Congressman Ryan stated in the vice presidential debate last week that the policy of a Romney-Ryan administration would be “to oppose abortion, with the exceptions for rape, incest, and life of the mother.”
- Ryan criticizes Roe v. Wade and holds that “people through their elected representatives in reaching a consensus in society through the democratic process should make this determination.”
Peppard seems to think that because these positions depart from an absolute pro-life moral and legal position, Ryan, like Biden, places a “distance between nonnegotiable Catholic moral teaching and civil law” and has “joined the ranks of dissenting Catholic politicians.” But what Peppard seems to misunderstand (and profoundly misstates Catholic doctrine about) is that not all positions placing a “distance between nonnegotiable Catholic moral teaching and civil law” are equally wrong. Pro-choice Catholic politicians and their apologists are right about this: there are some hard questions about the relation between morality and law in the abortion debate. But it is a profound mistake to move immediately to the conclusion, implied in Peppard’s essay, that it is impossible to make reasonable comparative judgments on law and morality (comparative judgments about how the positive law is derived in various circumstances from the natural law) in the abortion debate.
I don’t expect the New York Times to represent Catholic teaching accurately, but I would hope a theologian could have bothered to take account of the text in Evangelium Vitae that speaks to this very question:
¶73.1 Abortion and euthanasia are thus crimes which no human law can claim to legitimize. There is no obligation in conscience to obey such laws; instead there is a grave and clear obligation to oppose them by conscientious objection…
¶73.2 In the case of an intrinsically unjust law, such as a law permitting abortion or euthanasia, it is therefore never licit to obey it, or to "take part in a propaganda campaign in favour of such a law, or vote for it".
¶73.3 A particular problem of conscience can arise in cases where a legislative vote would be decisive for the passage of a more restrictive law, aimed at limiting the number of authorized abortions, in place of a more permissive law already passed or ready to be voted on. Such cases are not infrequent. It is a fact that while in some parts of the world there continue to be campaigns to introduce laws favouring abortion, often supported by powerful international organizations, in other nations--particularly those which have already experienced the bitter fruits of such permissive legislation--there are growing signs of a rethinking in this matter. In a case like the one just mentioned, when it is not possible to overturn or completely abrogate a pro-abortion law, an elected official, whose absolute personal opposition to procured abortion was well known, could licitly support proposals aimed at limiting the harm done by such a law and at lessening its negative consequences at the level of general opinion and public morality. This does not in fact represent an illicit cooperation with an unjust law, but rather a legitimate and proper attempt to limit its evil aspects.
So we have two positions:
(A) A Catholic politician may voice opposition to abortion while advocating (arguing for, voting for, taking public positions in favor of) legislation that restricts abortion further than the current legal baseline (or judicial rulings restricting abortion) but falls short of an absolute prohibition. The object of such legislation (or judicial rulings) is to restrict abortion, while tolerating exceptions to a prohibition on abortion in order to bring about restrictions. This position is affirmed by ¶73.3.
(B) A Catholic politician may voice opposition to abortion while advocating (arguing for, voting for, taking public positions in favor of) legislation permitting abortion (or judicial rulings recognizing an expansive right to abortion). The object of such legislation (or judicial rulings) is to permit abortion. This position is rejected by ¶73.1 and ¶73.2.
Peppard’s entire essay rests on a conflation of (A) and (B) in order to make those who hold (A) seem as much "bad Catholics" as those who hold (B). Alas, the "Catholic position" to which Peppard refers throughout his essay teaches otherwise.
Exposed!
Oh my. I'm in big trouble. My friend George Weigel tells me that Michael Winters at the National Catholic Reporter has declared (ex cathedra, I assume) that Grant Gallicho at Commonweal has "exposed" me for . . . sanctimony! (It was in my post criticizing the statement by Catholic liberals branding Paul Ryan as a Randian enemy of Catholic social thought.) Well, there it is. I have been exposed. The magisterium of liberal Catholicism has spoken. I am condemned. Woe is me. How does one stand up under an assault by such formidable personages? I mean, Michael Winters. And Grant Gallicho. Perhaps I should recant and throw myself on the mercy of the tribunal:
Paul Ryan is a Randian enemy of Catholic social thought! Paul Ryan is a Randian enemy of Catholic social thought! Paul Ryan is a Randian enemy of Catholic social thought! He really does want to dump old ladies in wheelchairs off cliffs. He really does want to dump old ladies in wheel chairs off cliffs! He really, really, really, really, does.
As the Cowardly Lion said: "I do believe in spooks. I do believe in spooks. I do, I do, I do, I do believe in spooks."