Like Richard, I would like to follow up on Rick’s invitation to respond to Professor Foley’s interesting column on “Stem Cells and Constitutional Duty.” I thought it would be useful to reread or review several relevant texts before offering my response. The texts I re-examined are the following: the majority opinion in Roe v. Wade; the majority in Stenberg v. Carhart; and Michael Scaperlanda’s and John Breen’s important and insightful essay Never Get Out’a the Boat: Stenberg v. Carhart and the Future of American Law.
I begin with one area of agreement with Professor Foley: people do have a right under domestic and international law to beget children, or not. But once they do, regardless of the method used to “beget,” their responsibilities and accountabilities arise. I suspect this is where Professor Foley and I would begin to part company. And so, let me offer some principal points of disagreement with her commentary.
I must respectfully disagree with her contention that the President abused his Executive Power and violated his Article II oath to “preserve, protect and defend the Constitution of the United States
.” First of all, the President followed Article I, Section 7.2 of the Constitution in registering his disagreement (objections) with the stem cell legislation. Under the Constitution, it was for the Congress to override the veto with a super majority, and this the Congress failed to do in spite of its attempt. I cannot see how the President failed in complying with the duties of his oath as she asserts. It may be that Professor Foley disagrees with the President’s objections (this seems a plausible avenue to consider when one reads the rest of her commentary). But her disagreement with his justification for the veto does not make the case for stating that he abused his power and violating his Constitutional oath.
I think Professor Foley and I have very different understandings of what the majority said and did not say in Roe v. Wade. Let me concentrate on those issues that are raised in her commentary. The majority did not define the meaning of “person” in Roe. Therefore, it did not answer the question posed by the State of Texas
. As a matter of fact, Justice Blackmun avoids answering “the question” when he concludes the relevant discussion in Section IX of the majority opinion by stating: “This conclusion [regarding the majority’s dicta about the 14th Amendment and the nature of personhood], however, does not of itself fully answer the contentions raised by Texas
, and we pass on to other considerations.” I believe the inability of the Supreme Court in Roe to define personhood is one of the important points made and ably demonstrated by John and Michael’s essay to which I have previously referred. In candor, the Court avoided the issue and hence passed “on to other considerations.” The Court did not define the vital term “person.”
Of course, while we are at it, we need to consider that the Constitution’s original text did minimize or eliminate the personhood of some human beings. Article I, Section 1.3 states that those human beings bound in permanent servitude only counted for three-fifths of a person; native peoples counted not at all. With the passage of time, these provisions limiting or denying personhood were superseded by the 14th Amendment. Since the Court has not addressed the issue in Roe or any other case regarding the personhood of the embryo or fetus, I shall hold further comment on Professor Foley’s remarkable observation.
Professor Foley also develops an interesting argument when she asserts that “parental liberty trumps any interest government might have in protecting pre-viable human embryos.” While the United States
never ratified the San Jose Convention (American Convention on Human Rights) of 1969, it did sign the instrument. Normally signature implies that the signatory country, even though not a party by ratification or accession, will not do anything to undermine the objectives of the instrument. In any case, this instrument states one relevant objective in Article 4 that “Every person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception…” Another concern I have with Professor Foley’s contention on this topic is who should be considered the “parent” of cloned human embryos? In spite of some set backs, scientists are getting closer to cloning human embryos. Should that occur, will they be considered the “parents” of these embryos; will those who donated cell material used for each clone be viewed as the “parents”? If so, what liberty of theirs is at stake? But then Professor Foley concludes in this part of her discussion that the President’s view on the status of embryos and his interpretation of the Constitution conflict with the undeniable law of the land. I respectfully suggest she is wrong in this assertion.
Another of her points meriting response is her contention that the President relied on his personal moral views in the exercise of his veto power; Professor Foley further contends that this is fundamentally antithetical to the law because it was contrary to the Constitution (the President “pursue[d] an agenda contrary to our declared Constitution”) and thwarted the will of “We the People.” By her professed standard, it would follow that President Clinton acted unconstitutionally in his “thwarting” the will of “We the People” when he vetoed the partial birth abortion legislation duly enacted by Congress.
This brings me to Professor Foley’s general concerns about the difficulty with relating “personal moral views” and public policy and law making. It would seem that she would also be opposed to “personal moral views” that support environmental, safety and health, and education legislation, too. Of course, many who supported the Civil Rights Act of 1964 did so out of their “personal moral views.” We must not exclude the fact that President Lyndon Johnson relied, in part, on morality when he signed this important legislation on July 2, 1964. On the important occasion he stated, “But [discrimination] cannot continue. Our Constitution, the foundation of our Republic, forbids it. The principles of our freedom forbid it. Morality forbids it. And the law I will sign tonight forbids it.” [italics mine] I wonder if Professor Foley would consider the civil rights legislation tainted by the President’s remarks?
It would seem that Professor Foley and others make another invalid assumption about moral (or religious) views that support public acts such as law making. The second error that I believe she makes in this regard is her inability to concede that, at least on some issues, the views of moral and religious persons can coincide with persons who subscribe to purely positivist outlooks. History demonstrates that this coincidence has existed in the past. I am confident it will continue in the future.
A final comment pertains to Professor Foley’s rhetorical flourish when she claims that the President has assumed “near dictatorial power” in exercising his veto. The President did no such thing. He followed the Constitution as I have demonstrated. Now, had he used his Article II power as Commander-in-Chief of the Armed Forces and prohibited the Congressional attempt to override the veto, she would have reason to express this concern. But, this is not what the President did; he simply followed the Constitution.
Another aspect of her flourish is in her concluding sentence that the President’s veto did not preserve, protect or defend OUR Constitution; rather, “he was giving it [the Constitution] the finger.” Which finger, Professor? His index finger used in emphasizing a point? Perhaps it was a thumbs up gesture? Or, maybe it was a thumbs down gesture? Since the President is a Texan, perhaps Professor Foley did not recognize some effort on his part to signify “hook-um horns”. But, I shall leave the interpretation of any hand gestures to those more skilled in construing body language. RJA sj
Tuesday, July 18, 2006
I would like to have responded earlier to some of the fascinating and important discussions on human rights that have appeared in MOJ over the past several days. But, this is the first opportunity I have had to put together a few words.
An important issue that permeates the discussion of human rights is the question: what is their source? For those who subscribe to an underlying religious belief, this question might be rephrased: who is their source? The answer is: God is the source. The State or other human mechanism is not.
Of course for some secular views, if the rights bearer/claimer is the source—or at least the foundation of their definition, then human rights become whatever that subject says they are. There would be no need to consider the perspectives of anyone or anything beyond the defining self. This situation presents a problem when the rights of one self-definer conflict with those of another. The solution for resolving the conflict becomes quite limited.
So the next step is to consider whether someone or something beyond the self is the definer of human rights. For the Christian and many other religious believers, it is, as I have suggested earlier, God who is their author and who gives each of his beloved creation the ability to claim and exercise rights in a proper fashion and to respond affirmatively to the responsibilities toward others in the exercise of these rights.
For the person who does not subscribe to either of these two views, the task of explaining the source because more complex. Is the source metaphysical? Or, is it tangible and human? Or, is it something else, not to exclude such a possibility? But if the source is of some human origin, what mechanism is there for reconciling, in the most just way possible, any conflict between or among people when the exercise of their rights conflict? Obviously, the answer would seem to be a human source. But, this circumstance can be affected by some of the same concerns that plague the first category I identified earlier regarding self-definition by the claimant. One might then say that judicial or legal mechanisms are then the proper and only source for reconciling these conflicts. But that would make these mechanisms too much like the self-defining author who claims and defines the rights. And, since these mechanisms are a function of the State, the State indirectly becomes the author of these rights. And this is a conclusion that conflicts with the Catholic perspective on the nature and source of human rights. RJA sj
Sunday, July 2, 2006
As if the Eye of Sauran were watching Rick and Michael's recent exchange, the Boston Globe responds with its own account about some aspects of domestic affairs and family matters [Download wasserman_cartoon.bmp ].
The characteristic nuances of the Globe raise a number of questions for me. One of them deals with the relationship between democracy (legislative initiatives and voter participation) and judicial review (the Goodrich case). The Globe has its own view on the matter, but that should not preclude the views of others being expressed--especially when the vehicle is within the structures of representative government. RJA sj
Saturday, July 1, 2006
I am sure I join many others who are still working their ways through the Hamdan v. Rumsfeld decision. At this stage I would like to make a brief observation about two issues addressed by the Court in this case. While references are made by members of the Court to international law, particularly the Geneva Conventions of 1949, little is said about the present day international criminal tribunals. I believe one reference is made in the context of the ICTY (International Criminal Tribunal for the Former Yugoslavia) regarding “conspiracy.” While the Court took strong views about international law in Roper v. Simmons and Texas v. Lawrence, it was less bold in relying on international law, especially international criminal law, in the Hamdan case. I was surprised that the majority/plurality in particular did not make any reference to the Rome Statute of the International Criminal Court. While that Statute’s provisions still remain largely unexplored in actual case applications, we need to be mindful about the fact that the Rome Statute addresses “conspiracy-type” collaboration in discussing individual criminal responsibility in Article 25. Moreover, there are provisions within the Statute itself along with the accompanying Rules of Procedure and Evidence which just might allow in camera ex parte proceedings from which the defendant/accused is excluded. Again, it will take some time to clarify the meaning of these provisions of the Rome Statute and its Rules through case application and the development of the ICC’s jurisprudence. However, it would be premature at this time to say that the Military Commissions criticized by the Court in Hamdan are unlike the proceedings that could take place under the ICC. Perhaps Justice Scalia was on to something in his dissenting opinion in Roper when he criticized his colleagues for selective reliance on international law in Constitutional adjudication. RJA sj
Monday, June 26, 2006
I would like to thank many of the MOJ contributors who have recently raised some important questions involving Catholics in public life-- be they university professors, office holders, theologians, or citizens. I believe that Rick's recent posting on the Church autonomy conference he recently attended helps me frame the thougths that I would like to present in this contribution that address the issue of Church autonomy.
Rick properly asked a question about the Constitutional source of the Church-autonomy doctrine. I imagine most lawyers addressing this issue would immediately think of the religion doctrines that emerge from the First Amendment. But I think that it is not only the free exercise and anti-establishment doctrines that would apply; we must also consider the apppropriate application of church members and their churches relying on the protection of rights regarding assembly, petitioning the government, and free speech and expression. Of course, other elements of the Constitution that also apply would include the doctrines involving equal protection, due process of law, and the prohibitions against bills of attainder and ex-post facto laws.
Coming back to some of the First Amendment matters for a moment, I want to address the difficult issue of the "wall of separation." I think most of us would agree that the Constitution does not use this formulation; however, some Supreme Court jurisprudence has attached particular, and perhaps undue, significance to a phrase found in a political letter written by Thomas Jefferson who had no hand in the drafting of the Constitutional text to which his phrase has often been applied. But, let us assume for this discussion that the Jeffersonian formula provides a useful analogy to understanding the First Amendment religion provisions in some contexts. I will further assume that most of us would be inclined to agree that there could be situations in which exclusive deference to particular religious views in developing public policy might raise establishment questions. So if the Church is barred from certain actions under some circumstances that would constitute establishment, is the State barred from any intrusions into the proper activities of the Church? In other words, does the separation principle generate responsibilities for both? I believe the separation principle also obligates the State from improper incursions of the Church's matters just as that principle restrains the Church from interfering with certain matters that properly belong to the temporal authorities. If the abstention obligation also applies to the State, its improper intrusions into Church affairs interferes with the autonomy of the Church.
In this context, individuals (office holders and citizens who are also members of the Church) need to be mindful of the dichotomy presented. But, when the person claims loyalty to both institutions--the sacred and the temporal-- he or she must be clear on certain first principles. Just as the Catholic owes certain responsibilities to the State, the Catholic office holder and citizen cannot use the authority of the State to intrude into those matters that properly are those of the Church. An illustration of this last situation would be the unsuccessful attempt last summer and fall of some members of the Massachusetts General Court (the legislature) to impose certain financial obligations and reporting duties on the Church.
How we think about the respective autonomies of the State and Church brings me to something Patrick had raised in one of his recent postings. In one of his discussions, Patrick made a reference to the Woodstock Reports. I did not realize they are posted on-line, so I took advantage to read some of the Woodstock Center's recent monthly reports. I found a passage in the June 2006 report [Here] pertinent to this posting. In an entry entitled "Vagaries of Faith and Politics", the author, William Bole, made this interesting observation in the context of the "prophetic voice" of bishops in nonpartisan debates on the political issues of the day:
"Some would argue the bishops muted this nonpartisan message in the 2004 [sic], when a furious handful of them stole the election-year stage by denying communion to Catholic politicians (especially liberal Democrats) who take a prochoice stand on abortion."
I believe this author is correct when he offered his suggestion that a small number of bishops had publicly addressed the duties of Catholics vis-a-vis their respective roles in participating in the temporal affairs of the State in 2004. However, I question his use of particular language and the accuracy of his portrayal, and I lament the image which his chosen rhetoric portrays. I read most, and I believe all, of the statements that American bishops issued during the 2004 election year regarding the public responsibilities of Catholics in exercising their public duties as either officials or as citizens. I found their written and oral statements clear and helpful in clarifying Church teachings that applied to many of the pressing issues being debated during the election season. I did not find their rhetoric "furious." Firm: yes; furious: no. I also recall that "stealing" is a crime, but I do not think any bishop committed this crime by exercising his proper teaching authority and other duties of episcopal office. In short, no bishop and no group of bishops "stole" anything in the context of the election-year stage. To suggest otherwise reveals an attitude that may well lead to the State improperly intruding into the Church's exercise of its autonomy.
I return to Rick's posting. I think he is on to something important when he concludes that Church autonomy could well be the religious-freedom issue of the present day. It is surely an important one. As we continue to address it, we also need to be mindful that there are other sources of authority addressing the relationship between the Church and the State. Some of them are from international law and could very well apply to the ensuing discussions; but, we must never forget the Church's own body of law that also has a bearing on this important issues and those others related to it. RJA sj
Saturday, June 17, 2006
I would like to thank Steve and Patrick for there recent postings that rise and converge, to borrow from Teilhard, to one shared point about Catholics who are in public positions. I shall confine these brief remarks to these Catholics who hold public office, be it elected or appointed, and those who hold higher office within the Church. Steve also talks about theologians, but I will not address them in this posting—but I hope to do so at some point sooner rather than later.
I am attaching [Download araujo_essay_nd.pdf ] a brief essay that I did in the recent Notre Dame symposium on “law as a vocation” that may have some bearing on the issue and let readers know the perspective from which I come. My focus in this essay was on the public official and the obligations of discipleship that attend the Catholic public official’s exercise of civil office. I wrote this before the second letter was distributed by many of the same Members of Congress who also co-authored the first letter that was sent to Cardinal McCarrick about two years ago and to which I refer at some length in my essay. It is clear to me that in both letters, these Members of Congress have studied with some care (or at least the drafters of the letters have studied and the signatories have adopted) the obligations of Catholics who hold public office. With all respect to them, I think their understanding of their responsibilities as Catholics who hold public office is flawed as I try to point out in my essay.
It becomes clear to me that they, or their delegates, have made an effort to study what the Church teaches. In some cases those teachings are adopted by the Members of Congress who have subscribed their names to these two letters, but in other cases the Church’s teachings are put aside by these same public officials—perhaps for administrative convenience, as Master Thomas Cromwell purportedly said. It also seems that these officials, or at least some of them, believe that if they adopt many of the Church’s teachings but ignore or contravene others, they are still on solid ground as far as being faithful Catholics. I think such a conclusion is premature as will be apparent to those who read my essay. What the Church expects of them, and of all its faithful, is clear. And, it is this clarity that is obscured by their correspondence.
So what should bishops do in response? I am one of those people who likes to follow Cardinal Dulles’s wise words on such issues and assume that they, the public officials, may not know what the Church teaches. That means that its teachers, pastors and bishops in particular, have their work cut out. In short, the bishops have to make the teachings clear and direct these teaching activities specifically to these Catholic public officials.
However, these Members of Congress who have twice penned a letter have indicated that they believe they know what the Church teaches because they indicate familiarization with many of the Church’s teachings as expressed through relevant Church documents. But, their understanding of these teachings is flawed.
On one issue in particular (but maybe not the only issue), they ignore what the Church has taught about procured abortion and the duties of the Catholic public official toward this procedure that some hold to be a “Constitutional right.” The Church does not ask these influential public officials to do the impossible, but it does ask them to do the possible—to minimize or to mitigate, if they cannot repeal outright, the effect of these laws which permit this terrible and immoral procedure. These proper actions some of them refuse.
In such cases, the bishops should recognize that their teaching must continue for others. But different actions for those Catholic public officials who profess to be familiar with the Church’s teachings may well be in order when it becomes clear that they know the teachings but ignore or reject them.
So, what should the bishops do? I think they have a variety of appropriate options available. One would be to invite immediately these Catholic public officials to a personal or small group discussion that makes clear the risks of their behavior.
If their behavior continues, it is not the Church that has turned its back on them; it is they who have turned their backs to the Church. The concerned bishops must realize that it is their responsibility to take those actions that are firm, faithful, and guided by the mercy of God for all involved. The silence of bishops concerning these public office holders may be based on reasons that presently escape me, and I welcome the opportunity to be informed of what they might be. But surely any silence cannot be based on the episcopal consent to the actions of the public officials that I have briefly discussed here and in my paper.
Saint John Fisher, pray for us. RJA sj
Thursday, June 8, 2006
I would like to follow up on Rick’s earlier posting of the Oregon federal district court case of John Doe v. the Holy See. It seems that Mr. Anderson, counsel for John Doe, has prevailed in convincing the court that the tort exception to the law of foreign sovereign immunity makes the Holy See vulnerable to civil suit. Judge Mosman’s Opinion and Order [Download Holy_See.pdf ] merit careful study. With the deepest and sincerest respect to the judge, I believe that he has the law wrong. Priestly and religious life are not constitutive of an employer-employee relationship. In my opinion, this is one of the errors made by the court in its conclusion. Rick is correct in asking for the assistance of canonists here. But if it is a correct assessment, I am sure many priests, brothers, sisters, and laity would be surprised to find themselves labeled as employees and agents of the Holy See. Within the judge’s decision lies a variety of mischiefs that I think the judge, Mr. Anderson, and many others do not intend. But, there they are. As I said, the judge’s decision requires a careful study taking into account the expanse to which his conclusions may affect international relations. In the meantime, the two trains to which I have alluded to in earlier postings continue running in opposite directions on the same track. But now, they have increased their speed, and I fear for the outcome. RJA sj
