The
title of my new book, Human Rights in the Constitutional Law of the United States, references the subject matter that has been my
principal scholarly obsession since the beginning of my academic career. In
the book--the introduction to which is available here for download--I elaborate three internationally recognized human rights, each of
which, as I explain, is entrenched in the constitutional law of the
United States: the right not to be subjected to “cruel and unusual”
punishment, the right to moral equality, and the right to religious and
moral freedom. I then pursue three inquiries that are of special concern to MOJ readers:
• Does punishing a criminal by killing him violate the right not to be subjected to “cruel and unusual” punishment?
•
Does excluding same-sex couples from civil marriage violate the right
to moral equality or the right to religious and moral freedom?
• Does criminalizing abortion violate the right to moral equality or the right to religious and moral freedom?
I
also pursue a fourth inquiry: In exercising judicial review of a
certain sort--judicial review to determine whether a law (or other
public policy) claimed to violate a constitutionally entrenched human
right does in fact violate the right--should the Supreme Court of the
United States inquire whether in its own judgment the law violates the
right? Or, instead, should the Court proceed deferentially, inquiring
only whether the lawmakers’ judgment that the law does not violate the
right is a reasonable one? In short, how large/small a role should the
Court play in protecting (enforcing) constitutionally entrenched human
rights?
I have long been engaged by, and have before written
about, questions such as those I address in this book: questions about
the implications of constitutionally entrenched human rights--and the
question about the proper role of the Supreme Court in adjudicating such
questions. (The title of my first book, published in 1982: The
Constitution, the Courts, and Human Rights.) Indeed, I have before
written about each of the three constitutional controversies at the
heart of this book: capital punishment, same-sex marriage, and
abortion. Because I was not satisfied with my earlier efforts, I decided to revisit
the controversies.
Friday, July 12, 2013
Capital Punishment, Same-Sex Marriage, and Abortion
On my teaching partnership with Cornel West
www.nationalreview.com/article/353233/what-conscience-really-means-interview
The NRO editors had to cut parts of some of my replies to their questions in order to keep the interview to a reasonable length. One of the truncated replies concerned my teaching partnership with Professor Cornel West. I'll reproduce the reply in full here:
I have taught undergraduate seminars (and will teach another one in 2015) with my dear friend and former Princeton colleague Cornel West, a man of the left (though definitely not a secularist) with whom I disagree on many issues. In our classroom work together, and in our many conservations, Cornel has been completely willing to engage on these issues, and examine his own philosophical assumptions, even as he invites me to examine mine. It’s a side of Cornel not seen by those who are familiar only with his fiery oratory at Occupy Wall Street rallies and the like. If conservatives had a window into our classroom, I know they would be pleased by what they would observe. There is no indoctrination—in either direction—no “political correctness,” no unquestioned or undefended assumptions, no rhetorical manipulation, no name-calling or other abuse. There is genuine intellectual engagement in a truth-seeking spirit of civility. The students actually learn something from the discussions—and so do the two professors.
Thursday, July 11, 2013
The Libertas Project at Villanova Law
Wednesday, July 10, 2013
"My Mother's Adoption: A Tale of Two Texans"
Powerful testimony.
...
Merfish writes with pride about her mom’s choice to kill her brother or sister because he or she was a few years early for her parents’ taste. Today, I’m writing with pride about my mom’s choice to save my brother’s life and give him a loving, intact family that could provide him the life he deserved. Merfish’s mom had to endure the judgmental attitudes of the abortionist. My mom had to endure months of morning sickness and ten hours of labor and delivery. Then she endured the pain of letting another woman, a woman who was ready to be a mom, take her baby boy home.
...
Merfish’s mom married her dad shortly after her abortion. They finished college and went on to have better-timed children and, presumably, successful lives. My mom later met a dashing grad student at that commuter college. They married, graduated, had two daughters, successful careers, and are now approaching a secure retirement. Choosing life, no matter how inconvenient, doesn’t have to end anyone’s chance at the American Dream.
Merfish’s mom taught her that the right to kill an inconvenient child is sacred. Merfish ends her piece in The New York Times with a call for more such “bravery.” My mom taught me that every child, no matter the inconvenience, is sacred. She made a heroic sacrifice to give my brother the life he deserved; she offered her suffering and sorrow to protect an innocent child’s rights instead of her own. Memo to The New York Times: that’s bravery worth celebrating.
Tuesday, July 9, 2013
An Important Church Autonomy Ruling
Catholic Health Association: Obama Administration's contraception-coverage mandate is workable.
Grant Gallicho has the story--which will interest many MOJ readers--at dotCommonweal. The beginning:
"Last night [July 8] the Catholic Health Association issued a memo to its members announcing that the final rules governing the Obama administration's contraception-coverage mandate are workable. In June of last year, CHA strongly criticized--as did the U.S. Conference of Catholic Bishops--the way the Department of Health and Human Services had attempted to accommodate the concerns of religious employers who objected to the mandate. The USCCB is still not (and may never be) happy with the rule. But CHA now believes HHS has addressed their concerns."
The rest of the story, with links, is here.
Michael McConnell on the President's lack of authority to delay the employer mandate
Writing in the Wall Street Journal, Michael McConnell, a friend to many of us at MOJ, writes:
President Obama's decision last week to suspend the
employer mandate of the Affordable Care Act may be welcome relief to businesses
affected by this provision, but it raises grave concerns about his understanding
of the role of the executive in our system of government.
Article II, Section 3, of the Constitution states that
the president "shall take Care that the Laws be faithfully executed." This is a
duty, not a discretionary power. While the president does have substantial
discretion about how to enforce a law, he has no discretion about
whether to do so.
This matter—the limits of executive power—has deep
historical roots. During the period of royal absolutism, English monarchs
asserted a right to dispense with parliamentary statutes they disliked. King
James II's use of the prerogative was a key grievance that lead to the Glorious
Revolution of 1688. The very first provision of the English Bill of Rights of
1689—the most important precursor to the U.S. Constitution—declared that "the
pretended power of suspending of laws, or the execution of laws, by regal
authority, without consent of parliament, is illegal."
...
The employer mandate in the Affordable Care Act contains
no provision allowing the president to suspend, delay or repeal it. Section
1513(d) states in no uncertain terms that "The amendments made by this section
shall apply to months beginning after December 31, 2013." Imagine the outcry if
Mitt Romney had been elected president and simply refused to enforce the whole
of ObamaCare.
This is not the first time Mr. Obama has suspended the
operation of statutes by executive decree, but it is the most barefaced....
...
As the Supreme Court said long ago (Kendall v. United States, 1838),
allowing the president to refuse to enforce statutes passed by Congress "would
be clothing the president with a power to control the legislation of congress,
and paralyze the administration of justice."
Sunday, July 7, 2013
An unlicensed sermon
A homily for the Sunday after the Fourth of July
14th Sunday—C
Isaiah 66:10-14
Galatians 6:14-18
Luke 10:1-12, 17-20
This past week we prepared for a wonderful annual celebration—our Nation’s Independence. Events: reunions, parades, fireworks. A remembrance of those who preceded us—their sacrifices for future generations: for liberties, for freedoms, for self-determination—all in accord with the self-evident truths about the human person noted by Thomas Jefferson in the Declaration of Independence. Also, for many of us, we observed the second Fortnight for Freedom, which reminds us of our first liberty: the free exercise of our faith. We celebrate these and other issues—AND we reflect on the tribulations and triumphs that have made us and our country. Our nation’s story is a story of suffering and success; coincidentally, this is the story that Isaiah relates. The end of Isaiah’s prophecy proclaims that God’s People are once again in right relation with him and one another—hence prosperity abounds. God has blessed them abundantly. But that was not so, for many of the people had removed themselves from God.
This is the context surrounding the conclusion of Isaiah’s prophecy. Even though God’s people had, on their own accord, drifted from God—even apostatizing—God forgives and welcomes back home to Jerusalem the leadership of His people who had been abducted to a distant and foreign land.
Think of the ancient Hebrew slaves and the domination of Egypt over them. This is an important theme upon which Isaiah dwells—Jerusalem was ransacked and its leadership abducted. BUT, peace and prosperity were restored; God’s people and their leadership were restored to live and to prosper once they recognized and repented their turning against God and what He asked of His people.
Some other important points need to be considered regarding their story. When they remained in right relation with God, and one another, God blessed them in this independence. They exercised their freedom wisely. But, when they sought to do their own thing—cut themselves off from God and from one another, they did not prosper. They faced disaster in the kind of independence—from God—that made them focus only on what they wanted for themselves. They did not see the plight of others. They did not see God nor did they understand their vital relation with him!
So, what is independence; what is self-determination for us? How do we best understand it in the terms of who we are, people of a great Nation, and people of God? It is God who helps us understand better what our authentic human nature is, and what it means to be independent.
Saint Luke’s Gospel provides another forum for considering this.
Here are the seventy-two who are being sent off to evangelize after receiving their commission. They are told that there is much work and so few to engage in it—the harvest is bountiful, but the laborers are few. Through our baptism, we follow these seventy-two. We have also been charged with the duties associated with proclaiming the good news in a variety of ways. We encounter people and a culture that is not always receptive to God’s ways—something that often gets prominence whenever certain elements of society pursue a wrong course of action.
By way of example: the full page advertisement of Freedom from Religion Foundation in the July 4th issue of the NYT. These folks celebrated the “Godless Constitution”—and relied on the slogan “in reason we trust.” This is misguided; this is wrong. Washington, Adams, and Madison, on whom they rely in the advertisement were men of faith. Even Jefferson, who is also quoted, insisted that religion be taught at the University of Virginia, which he founded. Another element to consider is this: the American Constitution Society of (the ACS for short) a few years ago published a booklet containing three founding documents of our nation: the Declaration of Independence, the Constitution, and the Gettysburg Address (150th anniversary of the Battle of Gettysburg was commemorated this past week).
For Lincoln’s address the ACS left out the phrase “under God.” Why? It took people like Professor Robbie George of Princeton University to notice that something important to Lincoln was missing from the ACS publication of the Gettysburg Address. Perhaps the ACS, like the Freedom from Religion Foundation, also think and assert that the nation and its fundamental law are Godless. For starters, they ought to reread Jefferson’s Declaration very carefully wherein he, Jefferson, refers to our Creator who gave us inalienable rights which are components of the self-evident truths also mentioned by Jefferson.
In this context, the new encyclical, Lumen Fidei has something quite relevant to the theme of today’s scripture readings. In N. 26, Pope Francis (with assistance from Pope Benedict XVI) asks an important question: “Can Christian faith provide a service to the common good with regard to the right way of understanding Truth?” Of course, ours is a faith of reason—a reason that is objective, unlike that of the American Constitution Society or the Freedom From Religion Foundation. So what is there to do, if anything, by us, God’s present day laborers? Fidelity in God’s truth—that is what there is to do, and, as in the time of Jesus, more laborers are needed. But we might be a good starting group!
Nevertheless, we must be mindful that there has been and will continue to be opposition to the truth of God. Those who remained faithful to God’s ways in the past experienced PRESSURE. How about our time? Will those of today, who also remain faithful, experience the same pressure? It seems that we are constantly reminded by the skeptical that religion might be tolerated, but only if religion remains a private matter and out of the public square. But this is not what God’s people are called to do: i.e., to be faithful only in private but not in public. Be assured, my friends, that God doesn’t abandon us in our times of need when we strive to remain faithful and serve him in our daily lives; so, let us be bold by seeking, proclaiming, and living the truth of God in the light of our faith even though there is pressure to do otherwise. That is a part of what Francis has asked of us because that is what God has asked and continues to ask of those who freely respond to be his laborers in the present age.
These thoughts give us an opportunity to reflect on how we can take up our call with the seventy-two. Sometimes in great ways, but most of the time in small ways, God, through the Son, asks us to go out amongst the wolves of our time. We are asked to encounter a culture, a people who have gone astray, BUT to remind them that the kingdom of God is at hand—the kingdom in which every person reflects the greatness of God through the joyful gift of life that can only be bestowed by God.
But how do we do this? How do we know what it is that God asks of you or me? Jesus—filled with God’s wisdom— shows us God’s ways of greatness that lead us to that authentic human destiny that makes us FREE from and INDEPENDENT of the Shackles of the Slavery of our misdirected ways—ways that make us want things that remove us from the nobleness of God that can also be a part of our human nature.
Jesus—wants to place a yoke on us. Not a yoke of slavery, but a way of life that binds us to one another and to God. This yoke is not heavy, the burdens it generates are bearable—they are easily maintained because, as Matthew indicates, Jesus is there to help us support whatever burden may be produced. YES, we are independent in many ways, ways that make us the agents of the gift of free will given to us by our Creator. But in the exercise of this great gift, we must also see how we ARE INTER-DEPENDT on one another and with God—for this too is part of our authentic human nature and our part of our heritage as patriotic Americans. But when temptations lure us away from this nature, prayer is needed.
May our prayer for one another and for ourselves be that we are open to God’s revelation that the meek and humble—not the superficially powerful—see and adopt in their lives. For, filled with the Peace of Christ and the Wisdom of God, we are truly independent because we rely on our interdependence with HIM who saves and whose divine image we bear.
With this as our guide, let us join the seventy-two in their, and our, search for God’s peace to those places where God’s harvest is abundant but where He needs more workers—more disciples! God has given us the benefit of discipleship in our baptism; may we not respond to one who is so generous to us?
And with this as our proper attitude, we can see that the few in number will continue to grow, and with this it will be possible to ensure that God’s harvest will be all the greater. My dear sisters and brothers, are we free for this commission? Our presence here at the Eucharist suggests that we are, so may we continue to be mindful that there is no greater independence than to follow the Lord!
Amen.
Friday, July 5, 2013
Lumen Fidei
As Fr. Araujo says, there is much to ponder in Pope Francis' encylical, including a few passages that relate directly to our project. I'll quote one such passage but before that I note that the word "gaze," which appears 13 times in the letter, stood out to me. For example, "Christians learn to share in the same gaze of Jesus" and "The gaze of science thus benefits from faith: faith encourages the scientist to remain constantly open to reality in all its inexhaustible richness."
Here is a passage from paragraph 55:
If we remove faith in God from our cities, mutual trust would
be weakened, we would remain united only by fear and our stability would be
threatened. In the Letter to the Hebrews we read that “God is not ashamed to be
called their God; indeed, he has prepared a city for them” (Heb 11:16). Here
the expression “is not ashamed” is associated with public acknowledgment. The
intention is to say that God, by his concrete actions, makes a public avowal
that he is present in our midst and that he desires to solidify every human
relationship. Could it be the case, instead, that we are the ones who are
ashamed to call God our God? That we are the ones who fail to confess him as
such in our public life, who fail to propose the grandeur of the life in common
which he makes possible? Faith illumines life and society. If it possesses a
creative light for each new moment of history, it is because it sets every
event in relationship to the origin and destiny of all things in the Father.
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