Michael Tomasky, writing in The American Prospect, argues that the Democrats' critiques of Bush policies, and their proposals of their own, need to be organized around the idea of "the common good." One can surely debate Tomasky's broad claim that Republican-led government has been all about trashing the common good -- although in several places the critique seems undeniable (lobbying corruption and rubber-stamping of business lobbies, creation of a Medicare prescription program that boosts the deficit by deferring to drug company pricing, leaving the compassionate conservatism programs underfunded while emphasizing high-income tax cuts, etc.). But setting aside that debate, the "common good" is certainly a theme that all of us interested in CST could welcome more of in our politics, no?
Noam Scheiber in The New Republiclikes the idea but points out the two major obstacles to it. First, under pressure from global competition, "business junked the common good when it became unaffordable and replaced it with rabid libertarianism"; and "[n]ow that business has spent the last 40 years undermining the idea of shared economic interests, it has become much, much harder to sell economic policies to voters in common-good terms." To make that sell, one would have to be consistent, "making the common good the animating idea behind pretty much everything the Democratic Party does: economics, social policy, foreign policy."
Which raises the second problem, "the biggest sticking point in this whole discussion" (Scheiber) -- that the left has succeeded on cultural issues by appealing to, and further entrenching, libertarian attitudes:
The reason abortion activists favor the language of privacy rights (e.g., "keep the government out of your bedroom,") isn't that they're stuck in a 1960s mindset. It's that this language is really, really useful for preserving access to abortion. . . .
[But] the Democratic Party can't very well project a communitarian image if teams of liberal activists are running around the country insisting on keeping the government out of your bedroom. The dissonance is too loud.
Or take end-of-life issues, like the debate over removing Terri Schiavo's feeding tube. The polling on the matter heavily favored the libertarian position--i.e., keeping the government out of the decision. But, again, if the party's trying to cultivate a more communitarian image, then it probably needs to argue that the government does have a role to play here. . . .
The bottom line is that, when it comes to hot-button cultural issues, it's probably always politically advantageous for Democrats to toe a libertarian line (keep the government out of your personal life). In the case of abortion, it may be the only way to keep the procedure widely available in some parts of the country. The problem is that doing so undercuts the broader common-good patina Tomasky wants to encourage.
And this ultimately takes us back to a problem I think you all have discussed previously, before I joined up. If Republicans win by saying you get to keep your money, and Democrats win by saying you get to keep your sex, how can a party or political movement win by saying both of these freedoms are limited by the common good?
Over time, we may see this argument increasingly split the business wing of the Republican Party from the cultural-conservative wing on the issue of same-sex marriage.
Earlier this month, more than 50 executives - in advertising, public relations, marketing and related fields - sent a letter to [Minnesota] Gov. Tim Pawlenty and the Legislature, warning that the proposed [state marriage] amendment could drive away talent from Minnesota. . . .
The argument, advanced in some other states [and in books by business theorist Richard Florida], is that there is a "creative class'' of talented workers, straight and gay, who are a driving force in the economy and seek out vibrant communities that are tolerant of differences.
Some of those who support the gay marriage ban reject the argument.
"Minnesota is such a fabulous state to live and work, it's a stretch to think people would choose not to live in Minnesota because our laws continue to reflect that marriage is between a man and a woman,'' said state Sen. Michele Bachmann, who has led the fight for the amendment.
Here (in the previously-referenced excellent Books and Culture) is a fine review essay on several recent books concerning torture, including lawprof Sandy Levinson's anthology Torture and St. Thomas theologian (and my seminar co-teacher) Bill Cavanaugh's Torture and Eucharist. Among the interesting questions raised is a challenge to the distinction between "torture" and "coercive interrogation practices," a distinction embraced (though with dramatically different degrees of ethical sensitivity and seriousness) by Christian ethicist Jean Elshtain and by the Bush administration. The reviewer writes:
Is it not possible that the cumulative effect of many acts of torture lite would amount to torture proper? A steady diet of hooding, sleep and food deprivation, nakedness and shame, exposure to severe temperatures, deception, and intimidation can surely have the effect of creating servility, creating a environment of fear, and destroying a subject's world. Here it is telling to note that Elshtain tends to associate torture with singular acts of extreme physical torment; but if Parry and Scarry are correct, the cumulative effect of persistent torture lite—which plays as much on the mind as on the body—can be equally devastating to the person as a whole.
Christian ethicists (including Elshtain herself) hold that the image of God resides in the whole person, who is a complex, integrated whole of body and mind. If this richer understanding of coercion is correct, it might, then, appear better to draw the lines precisely where the Geneva Conventions did, putting torture and torture lite in their respective categories while proscribing both. Even if necessity drives agents beyond the pale, even if our courts allow for such a legal defense, the moral line remains clear in this murky terrain. To my mind, this line of reasoning hardly counts as "moral code fetishism"—least of all, for the Christian ethicist.
John Wilson, editor of the evangelical book-review magazine Books and Culture (it's excellent -- check it out!), objects to yet another part of Damon Linker's recent attack on his former boss RIchard Neuhaus. Linker's New Republic article managed to insult evangelicals even more than Catholic neocons:
Countless press reports in recent years have noted that much of the religious right's political strength derives from the exertions of millions of anti-liberal evangelical Protestants. Much less widely understood is the more fundamental role of a small group of staunchly conservative Catholic intellectuals in providing traditionalist Christians of any and every denomination with a comprehensive ideology to justify their political ambitions. In the political economy of the religious right, Protestants supply the bulk of the bodies, but it is Catholics who supply the ideas.
Wilson objects:
There's too much confusion here, as Bob Dylan said; it's hard to know where to begin. In general, the figures most readily identified with the Religious Right—Jerry Falwell, Pat Robertson, James Dobson, Tim LaHaye, et al.— have been negligibly influenced by Catholic thought. Among evangelical intellectuals, Catholicism is much more influential than it was a generation ago, but it is only one stream among many shaping public discourse among evangelical élites, and certainly not on a par with the Reformed tradition represented by thinkers such as Nicholas Wolterstorff, Richard Mouw, and many others. Hard as it may be for [critics like] Linker to grasp, evangelicals are not entirely dependent on crumbs from the Catholic table.
This is a good point; the media still wrongly tend to see evangelicals, as a Washington Post writer did a numbers of years ago, as "poor, uneducated, and easy to command." Still, at the least, Catholics have had a very powerful influence on evangelicals on those "life" issues -- abortion, euthanasia, and embryonic stem-cell research -- that are central to evangelical political activism. On these matters, not only did Catholics prod evangelicals to become involved (e.g. the initial evangelical reaction to Roe was pretty ho-hum), but Catholic formulations of human dignity and the "culture of life" have also become the moral vocabulary for many, many evangelicals. Of course, the critique of abortion etc. comes from across the Catholic political spectrum, not just from conservatism: the central recent figure, John Paul II, resists political labeling. (On other issues -- war, the death penalty, government anti-poverty programs -- evangelicals already tended more toward political conservatism. On those they needed no Neuhaus, Novak, or Weigel to give them a lead.)
If you happen to have (as I do) a combination of interests in intellectual property and church history, you may want to check out this new article by IP scholar Peter Yu. From the abstract:
Today's copyright debate has generally focused on the digital dilemma created by Internet and new media technologies. Threats created by emerging communications technologies, however, are not new. Throughout history, there have been remarkable similarities between the threats created by new technologies and those posed by older ones.
During the oral argument in [the Grokster case concerning online music copying, Justice Breyer quipped:] ["F]or all I know, the monks had a fit when Gutenberg made his press.["] . . . Many legal scholars have described copyright as a response to the emergence of the printing press. However, very few have examined the press's impact on a group of contemporary middlemen - the medieval scribes. This Essay undertakes this inquiry and explores the impact of the then - new technology on the now - obsolete scribal industry. It begins by tracing the emergence of medieval scribes and the printing press and concludes with observations on the policy responses to the challenge created by the Internet and new communications technologies.
Rob notes that the SCOTUS decision upholding the Solomon Amendment, Rumsfeld v. FAIR, was cited by the district judge who rejected the Christian Legal Society's claim not to be excluded from recognized student-group status at UC-Hastings Law School. (Full disclosure about what follows; I sit on advisory boards for CLS and for organizations asserting the right not to be excluded from government programs because they require statements of faith and adherence to standards of sexual conduct.) Applying FAIR to the CLS case contravenes statements in the FAIR opinion and other associational-rights cases, and at the very least extends FAIR markedly.
(1) FAIR involved a withdrawal of federal (DOD) funding from the complaining law schools. But Hastings withheld from the CLS chapter not just funds, but also the ability to use the school's name and to advertise to students through a host of school media (e-mail, newsletter, website, organizational fair, student information center, certain bulletin boards). In a host of student-group decisions beginning with Widmar v. Vincent, 454 U.S. 263 (1981), the Court has treated selective denial of access to public facilities as a First Amendment burden far greater -- and subject to a stronger presumption of invalidity -- than denials of funding.
(2) The district judge inexplicably argued that CLS had not shown how being forced to open its membership and leadership to "lesbian, gay, bisexual or nonorthodox Christian students would impair its mission. Significantly, unlike the Boy Scouts in [the Boy Scouts v. Dale case, 530 U.S. 640 (2000), involving an openly gay scoutmaster], CLS has not submitted any evidence demonstrating that teaching certain values to other students is part of the organization’s mission or purpose." This not only contradicts the theme in Dale -- widely recognized as central to that decision -- that courts should defer to an organization's understanding of its mission. (If the Boy Scouts were held to be communicating messages about the preferability of straight behavior, how can one possibly claim that CLS is not communicating messages for "orthodox" Christianity and against same-sex conduct?) In addition, the district judge's reasoning, by treating forced admission to membership as not that serious a burden, contradicts the following passage in FAIR where the Court noted that the law schools were only required to associate with the military to the limited extent of allowing its recruiting on campus:
Law schools therefore "associate" with military recruiters in the sense that they interact with them. But recruiters are not part of the law school. Recruiters are, by definition, outsiders who come onto campus for the limited purpose of trying to hire students—not to become members of the school’s expressive association. This distinction is critical. Unlike the public accommodations law in Dale, the Solomon Amendment does not force a law school " ‘to accept members it does not desire.’"
The Hastings ruling pressures CLS to drop requirements for its leaders and for the members who are eligible to vote for its leaders. How can this not threaten to affect the organization's ability to preserve its views?
Yes, I think that if the Hastings ruling stands, it and others like it would greatly extend FAIR, wiping out FAIR's limitations and qualifications. A major attack on subsidiarity. (Lest I be personally misunderstood, the issue here is not whether bans on religious and sexual-orientation discrimination by student groups are a good idea generally -- they are. The issue is whether such bans must be applied to a religious group for whom for doctrinal beliefs and sexual-behavior standards are integral to its religiously based understanding, much as beliefs in environmental protection are integral to the law student Sierra Club chapter.)
In reaction to Susan's post about the University of Wisconsin refusing to include the Catholic group in student-fee funding: If the University allows student fees to go to a wide variety of student groups (as I'm sure it does), then there is a very strong argument that excluding the Catholic group violates the First Amendment by discriminating based on viewpoint. In Rosenberger v. University of Virginia, 515 U.S. 819 (1995), the Court held that it was unconstitutional to exclude an evangelical magazine from a wide program of student-fee-based funding of publications based on the fact that the magazine "manifested a belief in (or about) a deity." After Rosenberger, school officials and funding opponents tried to argue that the case was limited to a publication that expressed views on cultural/political/social matters from a religious viewpoint, and that cases involving actual religious activity like worship and evangelism were different (because religion there was assertedly a different subject matter altogether, not a different viewpoint on cultural/political/social matters). Without knowing the particulars, I imagine the UW officials may be asserting such a distinction here. However, such arguments were severely shorn down by Good News Club v. Milford Central School, 533 U.S. 98 (2001), which held that a private after-school program of Bible memorization and Christian teaching and singing fit within a forum of "moral and character instruction," and thus for an elementary school to exclude it from classrooms was improper discrimination based on viewpoint rather than permissible discrimination based on the forum's subject matter. Good News and Rosenberger together show at least that the Court will be very skeptical of claims that religious worship is different and can be excluded from a forum that allows or funds expression on a wide basis according to some quite general criterion.
Although I don't know the University's precise criterion for student-fee funding, it seems pretty likely to me that both "Lenten materials" and "evangelical activity" (as the AP story mentions) contain elements of reflection on life from a Catholic viewpoint, just as other funded materials reflect on life from other viewpoints. One reason to assume that the UW has a broad underlying criterion is that only a few years ago in Regents of U. Wisconsin v. Southworth, 529 U.S. 217 (2000), the Court accepted the UW's claim that it had a wide-ranging public forum for student-fee-based funding, as a predicate for rejecting conservative students' objection to having portions of their fees go to groups they opposed. Given the UW's successful arguments in Southworth, its desire to exclude "religious activities" as too controversial to include in funding looks ironic (to put it charitably).
Thanks to Susan for posting the quote from the University of St. Thomas Law Journal's webpage about the journal serving the school's mission. We have an all symposium-format right now and have published symposia on topics like John Noonan's scholarship and judging, same-sex marriage, business ethics, "pro-life progressivism," American "exceptionalism" in foreign policy, and alternatives to incarceration. In each case we have tried to put Catholic views in conversation and debate with each other and with other perspectives on current moral and legal issues. As the Journal's faculty advisor, I have to admit that there were practical, and not only principled, reasons why we were not particularly tempted with seeking simply "to publish the best articles [we could] (or, at least, articles by the most prominent legal scholars who will publish with [us]), regardless of subject matter." We knew that because our journal and law school were new, the process of competing for unsolicited articles would be very difficult. We followed Randy Barnett's advice and adopted the format of symposia with faculty heavily involved in conceiving the events and securing speakers. We expected this to improve greatly the quality of articles and contributors we published, and I believe it has.
But the symposium-format decision was more than just pragmatic. It also allowed us to choose topics relevant to our mission, where as I said Catholic insights can be placed in conversation and debate with other views. As Richard suggests, this kind of focus can lead to rewarding exchanges and can bring in perspectives that are otherwise overlooked in legal scholarship. Organizing a symposium also can provide a real community-building opportunity for faculty and students to work together in a common scholarly endeavor, far more as equals than in the research-assistant relationship. It is probably no great news to anyone to suggest that symposia, with the involvement of faculty who care, can be a good way to bring Catholic intellectual perspectives into a law review's pages. The Catholic legal-thought journals at Villanova and St. John's are doing this beautifully -- through the efforts of our own Mark and Susan among others -- as the recent conferences on John Paul II and John Courtney Murray show. And good symposia on faith-sensitive topics have appeared in main journals like the Boston College Law Review. The idea of doing symposia is always worth remembering, even if it's not a rocket-science point, and even if there are often obstacles to accomplishing it.
Those with an interest in Catholic legal education (just a few of us here!) will certainly want to look at this new paper posted by my colleague Lisa Schiltz:
"Motherhood and the Mission: What Catholic Schools Could Learn from Harvard about Women"
. . . Despite popular characterizations of the Catholic Church as hostile toward feminism, careful analysis of the Church's teachings on the family and women reveals a consistent record of support for many significant items on secular feminist platforms. In particular, there is a profound convergence of Church teachings, on the one hand, and writings of a strand of feminism known as "care feminism" or "relational feminism," on the other hand, around the need for a social revaluation of the largely unpaid, largely female, work of caring for family members. Less commonly acknowledged, though, is the convergence between Church and feminist arguments for restructuring the workplace to accommodate women who are mothers. This article describes the relevant Church teachings and their convergence with feminist arguments.
Recent research demonstrates that motherhood, rather than gender, is the most significant barrier to career advancement by women in the United States, including women in academia. This article summarizes that research, and analyzes faculty composition data for Catholic law schools over the past four years. The data demonstrates that gender ratios of Catholic law schools are essentially identical to those of other law schools. However, the special charge to Catholic universities set forth in Ex Corde Ecclesiae, The Apostolic Constitution on Catholic Universities – to be both the intellectual vehicle by which Catholic ideals are brought to bear on the pressing problems of our time and a practical model for an institution structured around these same Catholic ideals – demands that Catholic universities seriously consider proposals for restructuring the academic workplace to accommodate motherhood.
