Objective Reality versus Reification

 

I should like to thank Kevin Walsh and Marc DeGirolami for their fine presentations yesterday on several pressing issues concerning the legal challenge of the Little Sisters of the Poor to the HHS mandate and related Government demands. There is a great deal of misinformation circulating about the mandate—some of from the media, some of it from prominent persons, and some of it sadly from the Government itself. Thus, there is a great deal of misunderstanding about the legal challenge initiated by the Sisters, and I am grateful to Kevin and Marc for their excellent clarifications. Some of the problems with the mandate are to be found in a law of questionable integrity and durability.

Why do I say this? Why do I make these charges?

I go back to the fact that the original legislation was several thousand pages long. I do not think it wise or prudent to enact legislation of such magnitude, especially under pressing time constraints where legislators, their staff members, and the public have a grossly incomplete picture of the the bill and the law it can become. The legislative process, in spite of political compromises and generalities that must be taken into consideration, is still an intellectual process that leads to the development of norms, some of which are enforceable by criminal and civil sanction. The bills that become laws should therefore be understood by those responsible for their making and for the citizenry whose lives will be affected. If this understanding is absent, how can lawyers and judges fairly explain their meaning?

We are still learning much about what the Obamacare statute contains; moreover, it will take still more time to interpret objectively its many provisions, some of which appear to or do conflict with one another. The former speaker of the House was correct on one matter on the eve of the statute’s passage by a slim majority of the House of Representatives—and I do not say this with admiration for the substance of what was said: we just have to pass the bill to know what’s in it. This is a terrible way to make law. What is in the bill should be known by those responsible for its passage before it becomes law and affects, often adversely individuals and the common good.

But Obamacare, which is being legally challenged on a number of fronts, is the law, for the time being—complete with its benefits, its problems, and its sanctions.

As Marc and Kevin have demonstrated, there are sound arguments that demonstrate the laws many Achilles’s heels. With time, more sound arguments will reveal more defects in the statute. As Marc and Kevin have capably illustrated, the Government’s arguments to justify and uphold questionable provisions that are, in turn, supported by influential media voices fail to take stock of the objective meaning of the language of our fundamental law, the Constitution of the United States, and the reality that surrounds the Constitution and the flawed Obamacare legislation.

Today’s first reading for the Mass of the day is taken from the first letter of Saint John. This text from sacred scripture reminds us that there are those who take liberties with the truth that surrounds important matters. Such a liberty compromises, sometimes fatally, the truth of human existence and the norms that should uphold the common good that it designed to protect each and every person’s legitimate interests.

It is clear that the Government and powerful media outlooks have taken such liberties and, furthermore, have tried to block or treat as irrelevant (even as non-existent) opposing views to their positions. Their actions inevitably compromise the truths about the healthcare legislation that confront many people of good will; in addition, the justifications offered by the state and its allies in the media misrepresent what the citizenry have the right and the obligation to know about their laws, their Government, and their general welfare that is adversely affected by this legal beast.

This is where Catholic legal theory and the efforts of those of us who still train the new lawyers who will become legislators, administrators, and judges of our human laws come into play. On this website, in my classrooms, and in the lecture halls around the world where I have spoken, I have emphasized time after time the significance about human intelligence comprehending intelligible reality in order to make, follow, and adjudicate norms that protect and further the common good. This approach to the law, legal education, and what both are about is distant from the efforts of our Government and its confederates in their persistent efforts that will likely, in the long harm, do more harm than the good it was supposed to achieve.

Again, I am grateful to Marc and Kevin for their work to demonstrate the reality of the law and its implications on the lives of many who will suffer under it. The so-called reality of the matter as explained by the state in its defense of this problematic legislation is anything but valid; it is, in fact, a reification of what the state thinks is in the best interest of the common good of the American people but is not.

 

RJA sj