It's been expected for quite a while that this would eventually happen.
Monday, October 3, 2005
Alabama 10 Commandments Judge Running for Governor
Miers and Pro-Lifers
I see RIck's point that pro-lifers need to withhold judgment on Myers because her views on Roe as a constitutional decision are not clear. But what does seem clear is that Bush is at best taking a big gamble on her views of Roe (unless she's given him private assurances) when there were other candidates whose opposition to Roe's constitutional foundation was far more certain -- and who, as Todd Zywicki lucidly explains over at Volokh, would be far more likely "to provide intellectual leadership that will move the legal culture" against Roe (and other erroneous decisions) over the long run. RIck points out that any nominee who had explicitly criticized Roe would face stiff opposition (would probably get no Democratic votes). But Bush now has 55 Republican senators -- more than he's ever had -- and in the past he's taken on fights like this on issues that he truly cared about, such as the war in Iraq and upper-income tax cuts. The negative inference about the weakness of his commitment to overturning Roe may not be conclusive, but it's pretty darn strong.
Tom
American Exceptionalism (cont'd): Legal Views
In contrast to the philosophers and theologians at Friday's St. Thomas symposium, who were all critical of the idea of the U.S. as exceptional -- including exceptional in the sense of not needing to be constrained by international human rights law to the same degree as other nations -- several of the law professors defended, to one degree or another, the U.S. resistance to international human rights law. (Although all the symposium participants were quite good, there could have been a little more diversity of views within each panel: a theologian more to the right, and a law professor more to the left.)
Jack Goldsmith (Harvard) offered a quite convincing case, so far as I could tell, for the U.S. practices of making reservations on certain issues when it signs treaties and requiring domestic legislation in order for a treaty to be enforced. First, he argued, the U.S. is not exceptional in this regard, since England and most other liberal democracies also make reservations and/or treat treaties as non-self-executing. Second, the practice of reservations actually shows respect for international human rights law: the U.S. and other liberal democracies take those obligations seriously and won't sign on to a provision that they can't commit to enforce, while dictatorships around the world sign onto the treaties with no reservations and then ignore the obligations. Third, to require domestic legislation for enforcement of a treaty makes sense for a liberal democracy with a developed civil-rights enforcement system, because the sudden direct application of (often vague) international human rights law could affect that system in unforseen and negative ways. For all these reasons, Goldsmith argued, the focus should be on the moral substance of U.S. practices (like the death penalty or prison conditions), not on whether the U.S. signs on unreservedly to human rights treaties. I'd be interested to know if others see flaws in these arguments, which seemed pretty persuasive to me.
John Harrison (Virginia) made arguments that I -- admittedly a non-expert -- found somewhat less convincing. He used tools of federalism analysis to assess whether human rights law should be made locally (i.e. by the individual nation) or centrally (i.e. through international bodies and documents). He argued that the standard reasons for central decisionmaking -- interactions between various local acts, and the superiority of the central decisionmaking process -- don't apply in the case of human rights law, at least not with respect to U.S. behavior. As to "interaction" arguments, there's no particular need for a coordinated uniform standard (as there is with e.g. which side of the road to drive on); there are no material externalities from human rights problems in the U.S. (e.g. we don't create lots of refugees); and the U.S. doesn't participate in a race to the bottom (e.g. allowing economic abuses to attract investment). As to "process" arguments, the international human rights process is less democratic than the U.S. lawmaking process, and it is not improved just because it adds lots of non-American perspectives (many of those are bad, e.g. the perspectives of dictatorships).
Although Professor Harrison raised several good points, I had two negative reactions to his arguments. First, some of his claims were debatable, as he acknowledged: for example, the U.S. (or individual states) might in fact relax some norms (such as workers' protections) in order to attract investment. Second and more fundamentally, I don't believe that we typically analyze federalism issues with respect to particular states -- do there need to be federal protections for workers in Minnesota? In Texas? -- and then adopt a federal standard for one state while letting another act on its own. Rather, we ask whether the particular issue(s) should be left to states in general. There are some exceptions, to be sure: preclearance requirements for some states under the Voting Rights Act, stricter air-quality standards for some cities. But in general, we say that if a matter should be left to the states, it should be left to all the states (subject, perhaps, to some minimum federal requirements). I assume that part of the reason for this is the intuitive sense that treating states unequally will create resentment and make enforcement of norms more difficult. If this is true for U.S. federal-state matters, where there is a central government with relatively effective means for enforcing its will, I'd guess it's even more true for norms across nations, where the enforcement mechanism is weaker and compliance therefore rests even more on the intuitive fairness of the system. There are many international human rights laws that we want Iran, China, Egypt, and other nations to follow; but our moral standing to press such arguments is greatly weakened if we disregard such norms whenever we have a problem with them. Even if we set forth reasons why we're different from those nations and don't need to be subject to international norms, those reasons will inevitably be seen as self-serving (which is a major cautionary point about American exceptionalism, one that that Professor Ryn raised in his talk earlier in the day).
I unfortunately missed the comments by Philip Bobbitt (Texas). But MOJ friend Paolo Carozza (Notre Dame) gave a very lucid talk on the various reasons why it is difficult to get international human rights norms ratified in the U.S. and implemented in our domestic law. He discussed not only the extra hurdle the U.S. Constitution throws up for treaty ratification (2/3 of the Senate versus a mere parliamentary majority, typically, in comparable nations), but also the not (reasonable) perception that the international human rights law process is less "democratic" than the U.S. legislative process. Again, the symposium discussion might have benefitted from a wider range of views on the legal panel -- a strong lefty vigorously arguing for complete U.S. adherence to the international human rights system. But all of the participants that I heard on the two panels were good.
Papers from the symposium -- theological, philosophical, and legal -- should appear in the University of St. Thomas Law Journal by next spring.
Tom B.
Sunday, October 2, 2005
Briefs in Ritual-Tea Religious-Freedom Case
Initial briefs for both sides have now been filed in the Supreme Court in Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, the case involving the federal government's threatened prosecution of a religious sect (the UDV) that ingests a tea at its worship services containing a small amount of a natually occuring hallucinogenic substance. As discussed in a previous post here, the sect obtained a preliminary injunction against application of the federal drug laws based on the Religious Freedom Restoration Act of 1993 (RFRA), and this case raises questions about the scope and vigor of RFRA's interpretation that are potentially vital to a wide range of faiths. (The constitutionality of RFRA is not likely to be an issue, since the government has not questioned it.) Oral argument is November 1.
Briefs for the federal government and the UDV are here. A number of amicus briefs supporting the sect are at this site. They include a brief that I co-wrote (downloadable here) on behalf of 17 religious and civil-liberties organizations ranging from the ACLU to the National Association of Evangelicals and including among others Muslims, Orthodox Jews, and Sikhs (the kind of broad ideological coalition that supported RFRA in the first place). The brief argues for a strong interpretation of RFRA's requirement that when government imposes a "substantial burden" on sincere religious exercise, the application of that burden must be justified as the least restrictive means of serving a compelling governmental interest. Excerpts from the summary of argument:
The Government’s challenges to the UDV’s request for an injunction conflict with RFRA’s text and logic and, if accepted, would seriously undercut the statute’s purpose of protecting the religious conscience of all faiths. . . .
First, as RFRA’s plain language provides, the Government must establish that it has a compelling interest in applying the law in question "to the person"—that is, to the claimant’s own particular religious conduct—not merely a compelling interest in the law in general. Requiring the Government to prove the need for regulating the individual claimant is crucial if RFRA’s protections are to be meaningful. Indeed, without such a requirement, the "compelling interest/least restrictive alternative" analysis becomes a tautology: The Government can always claim (despite its present attempt to limit this case to illegal drugs) that it has a "compelling interest" in the uniform application of the law, and on that basis establish that a policy of denying all religious exemptions is the "least restrictive means" of furthering that interest.
Thus, in this case, the Government cannot meet its burden merely by contending that the Controlled Substances Act requires uniform enforcement. Rather, the Government must show a compelling interest in prohibiting the importation and use of hoasca in the specific context of the UDV’s rituals. As a corollary, the Government may not simply rely on generalized congressional findings about a controlled substance but must "demonstrate," with real evidence, that the substance poses compelling dangers in the context of the sacramental use. . . .
Second, given the stringency of the compelling interest test, the Government must prove that the harm to the governmental interest from the claimant’s religious exercise will be serious and likely, as shown by concrete evidence rather than speculation or even general congressional findings. That is why the district court was correct in requiring the Government to show that the UDV’s use of sacramental hoasca tea would create "serious risks of harm" to its members or "a significant risk of diversion to non-religious uses." Given the district court’s finding that the evidence concerning these harms was merely "in equipoise," the courts below properly held that the Government had not met its stringent burden.
When I find a site with amicus briefs supporting the government, I'll pass it on.
Tom B.
American Exceptionalism: Theological, Philosophical, and Legal Views
I was delayed blogging about this most of the weekend (had to shepherd 24 first-graders to the zoo for a birthday party earlier this afternoon) ... but this past Friday, the University of St. Thomas Law Journal hosted a symposium on "American Exceptionalism in the 21st Century," with an interesting set of philosophical, theological, and legal perspectives on the concept of America's supposed uniqueness in the world. Walter Mondale gave the keynote address.
The panel of philosophers/theologians all criticized, more or less sharply, America's recent actions in the world. Leading natural-law theorist Joseph Boyle (Philosophy, University of Toronto) gave a review of the basic texts and principles of the just-war tradition. I didn't catch all of Professor Boyle's remarks, but he expressed doubt that the Iraq war could be justified under just-war standards.
My St. Thomas colleague (and my compatriot in team-teaching a "Christianity and Politics" course to undergrads and law students) Bill Cavanaugh, a terrific theologian, gave a powerful "theological critique of American exceptionalism." He traced how the Puritans' identification of their purified church as the New Israel morphed into the frequent assertion of America the nation as the New Israel, God's chosen nation. This, he argues, has been a theological mistake with catastrophic consequences, especially for the Church, whose members tend to follow the assertions of political leaders about a "just war" rather than following any lead from the Church's shepherds. (Bill applied this critique to the Catholic supporters of the Iraq war in this 2003 article.) My reaction to Bill's symposium paper was first to agree that we Americans often sacralize the nation, committing idolatry and letting the nation rather than the Church form our judgments -- but also to think that one can many times defend America on the more modest ground that it is a relative force for good in the world, better than many of the alternatives (at the same time that it often merits criticism for arrogance, naivete, and other wrongs). I've wondered if and where the Scriptures provide any model of such a relatively beneficial (though far from perfect) regime: not the chosen nation (like Israel) or the minimally justified keeper of order (like the Roman Empire as portrayed in Romans 13), but somewhere in between. One possibility, raised briefly at lunch after Friday's panel, is the Persian emperor Cyrus, who was scarcely a follower of God but comes off well for letting the Jewish exiles return to Palestine.
Claes Ryn (Politics, Catholic University) argued his thesis that today's neo-conservatives are neo-Jacobins, convinced that their values are universally valid and should be imposed on the rest of the world however recalcitrant it is. They have forgotten, Ryn argues, that the American founders, even as they set forth universal values, also believed deeply in original sin and the need for humility and restraints on power. Ryn adds that in the name of universal values, the neo-conservatives ignore or denigrate historical and traditional differences among societies. Ryn's argument that both original sin and historical-traditional differences call into question the simple pursuit of universal values closely traces themes that I've argued (here) are very important: those in the "realist" tradition of Christian social ethics. For what it's worth, it seems to me there's a strong case that the Iraq war reflects, if not "neo-Jacobinism," then considerable American arrogance: for example, one of the main reasons the administration gave for committing what proved to be inadequate numbers of troops to Iraq was the claim that Iraqis would simply rally to our side, understanding that we simply wanted to free them from tyranny. That was classic American moral hubris, assuming not only that our hearts are pure, but that no one else could fail to agree about our purity.
Still, it is a little more complicated than that, it seems to me. After all, in the reconstruction of Iraq the administration has in some ways been quite attuned to the historical-traditional particularity of Muslim societies. From the start, American was ready to accept an Iraq that, although democratic, was officially founded on Islamic values and also reflected a conscious division/sharing of power among ethnic/religious groups -- both arrangements that are quite different from how we do things in America (where religious disestablishment, color-blindness, and the melting pot are strong ideals). The administration has supported the right to vote and other basic freedoms in Iraq while raising no objections to these other features that would diverge substantially from our practices. Even though the administration has displayed arrogance and hubris in many respects concerning Iraq, hasn't it made a pretty decent stab at distinguishing between nonnegotiable universal values and acceptable historical-traditional particularities?
Since this post is already long, I'll blog separately about the law professors' panel at the St. Thomas Law Journal symposium, which included MOJ friend Paolo Carozza.
Tom B.
Thursday, September 29, 2005
Last Word (from me, that is) on Federalism and Moral Conflict
I appreciate the most recent comments from Eric Claeys and from Rick on the "Can enforcing federalism create a moral conflict?" question. Since RIck and I have gone back and forth already on this, let me focus on Eric's arguments. Most of them rest on the negative consequences that would follow if judges purposely disregarded proper principles of constitutional interpretation in order to avoid a moral conflicts (e.g.: "If the judge turns a blind eye to the original meaning of 'interstate commerce' here, he lays down one small but unmistakable precedent for judges disregarding text for policy preferences in other cases"). I want to make clear that I would not advocate a justice/judge misinterpreting the Constitution as the means of avoiding a serious moral conflict. The proper course in a case of such conflict would be to recuse oneself or, if that option is not available (though I think it should be), resign.
I still wonder: if a justice who blocked any effective attack on widespread, oppressive discrimination by striking down the Civil Rights Act would not be impermissibly cooperating with great injustices, then I wonder whether the same defense couldn't be offered for the justice who votes to uphold abortion rights and thereby let abortions go forward? After all, if applying judicial review to block a law in the one situation is cooperation with evil only "to some remote degree" (as Eric puts it), then it seems the cooperation logically would be remote in the abortion case as well. And while, as Eric notes, there are valid and important arguments for federalism and subsidiarity in general (even if the application of federalism in a particular case lets a terrible evil go forward), there are also valid and important arguments for rights of personal privacy in general (even if their application in the abortion case lets a terrible evil go forward).
This takes us back full circle to Rick's original post on the subject, which argued (if I characterize it correctly) that the problem with the justice who upholds abortion rights under the federal Constitution is not that s/he is conflicting with Catholic moral theory but rather that s/he is misinterpreting the Constitution because abortion rights cannot be derived from the text, history, and structure. And that led to my comment that while I agreed about the merits of the constitutional issue, a justice might with somewhat more plausibility adhere to Roe and Casey because of stare decisis concerns than because of their correctness on the merits.
And since we've already gone through the ensuing progression of posts, I think I'll leave it there; RIck and Eric are welcome to the last word if they wish.
Just to sum up my main point: People need to be consistent in the standards they apply to justices. If, as RIck has consistently argued, Kennedy is wrong in Casey simply because he's misinterpreting the Constitution, fair enough (and I certainly agree about the misinterpretation). But if, as I've heard argued by others, Kennedy was wrong (independent of the correctness of the constitutional interpretation) because he was cooperating with evil in upholding abortion rights, then the same moral stricture would apply against Roberts upholding Roe and Casey because of precedent, or against the conservative justice who struck down the Civil Rights Act.
Tom B.
Wednesday, September 28, 2005
"Both/And" Anti-Poverty Strategies?
Left-side evangelical Jim Wallis of the Sojourners ministry is circulating a "Katrina Pledge" (readable here) in which signers commit to do what they can to combat the kind of poverty that the Katrina aftermath dramatized, both in their own contributions of time and money and in urging their representatives to act. The pledge itself is extremely short; but Wallis has also sent a letter to members of Congress that speaks a bit more (though still in general terms) about policy approaches and the longstanding liberal-conservative fight over what anti-poverty strategy to pursue. The central quote:
Second, each "side" of our political landscape ignores too many valid concerns of the other side. Poor families don't need us to take sides - they need us to stand in the gap with them. Much could be accomplished with a merging of personal and social responsibility, a commitment to reverse family breakdown, a more honest assessment of both the personal decisions and social systems that trap people in poverty. That involves being more creative than looking solely to charity or only to government for hope. We need to acknowledge that budgets are moral documents and budget priorities can help or hurt the poor - and acknowledge that negative family and cultural values deeply impact low-income people. We must all confront realities of our national, community, and personal priorities, recognizing that there are multiple breakdowns of culture, family, community, and government that are undermining poor families and the very fabric of our nation. Doing so requires that leaders who care about results start to look at the current situation and the future differently.
Indeed we must be disciplined by results when it comes to poverty reduction. It's time to move from the politics of blame to a politics of solutions. Liberals must start talking about the problems of out-of-wedlock births and strengthening both marriage and parenting. Conservatives must start talking about strategic public investments in education, health care, affordable housing, and living family incomes. We must focus on making work really work for low-income families. Those who work hard and full time in America should not have to raise their children in poverty - but many still do. Together, we must end the debate between large and small government and forge a common commitment to good and effective government. I hope you agree that now is the time to do so.
In this week's Time, Joe Klein writes in a similar vein:
The most effective thing the Congressional Black Caucus could do to fight poverty would probably be to invite white and Hispanic legislators who have significant numbers of poor people in their districts to join its ranks and rename itself the Congressional Antipoverty Caucus. One could also argue that the only way to build a coalition to fight poverty—and preserve affirmative action—in this conservative era would be to base preferences on economic need rather than race.
People like [Rep. Charles] Rangel and [Harry] Belafonte might do well to listen more closely to the next generation of black leaders—people like [Barack] Obama and Congressmen Harold Ford of Tennessee, Artur Davis of Alabama and Sanford Bishop of Georgia—who emphasize both the need for more money to fight poverty and the need to change the behavior patterns of the poor.
I also remember reading recently in either Time or Newsweek (can't find it online, though) the assertion that the vast majority of serious academic students of poverty issues have a consensus that both addressing family breakdown and providing smart public investments are necessary. Does that kind of "both/and" approach offer any hope -- in terms of both policy success and political viability?
Tom B.
Call for Papers: Public Policy, Prudential Judgment, and the Catholic Social Tradition
Call for Papers
2006 Annual Conference
“Public Policy, Prudential Judgment and the Catholic Social Tradition”
April 6-8, 2006
Terrence J. Murphy Institute for Catholic Thought, Law, and Public Policy
University of St. Thomas, Minneapolis-St. Paul, Minnesota
In the Catholic moral tradition, prudence is understood to be a moral virtue that enables a person to reason well about things to be done. Prudence concerns reasoning both about goals to be pursued and means to be employed to accomplish them. The tradition acknowledges the importance of moral principles, which shape practical reasoning in very fundamental ways, but it also insists that concrete actions are also determined by prudential judgment, which wisely takes account of particular conditions.
In recent years a number of public policy questions, such as the permissibility of the death penalty, the morality of the war in Iraq, and the justice of welfare reforms, have provoked controversy among Catholics. Advocates of very different policies have claimed that their positions follow from the Catholic social tradition and, at times, some have even insisted that their positions alone are faithful to this tradition. These controversies highlight enduring questions about the proper relationship between moral principles and prudential judgment.
In much the same way, controversies have also accompanied some of the formal positions adopted by the American bishops and even the Vatican on questions of public policy. Here again there has been an indistinct line between direct inference from moral principles and sound prudential judgment, where the former invites commitment and the latter tolerates disagreement.
Because of the importance of prudential judgment in public policy matters, we believe that the time is ripe for a careful and comprehensive discussion of the topic. We therefore welcome proposals for papers in the following categories:
Prudential Judgments in General: What different functions are played by fundamental moral principles and prudential judgments in choosing and acting? Which sorts of questions or challenges are best resolved by direct appeal to general moral principles and which require prudential judgment? What should be the scope of prudential judgments in the application of the Catholic social tradition to concrete situations? To what extent should the principles of the Catholic social tradition be shaped over time by the experience (and prudence) of Catholic laity active in public life?
The Bishops and the Laity: With their experience of political and economic life, should the voice of the laity play a special role in the development of the Catholic social tradition? Do the bishops teach with different authority on matters of principle and matters of prudence? What difference in response is appropriate for the laity when the bishops teach about principles and when they teach about prudential application? Should the bishops, as bishops, publicly address matters of prudential judgment? What are the implications of the character and influence of professional staff on the teaching of the bishops?
Specific Applications and Case Studies: Insight into the role and scope of prudential judgments is likely to be limited if it is based only on abstract considerations. The line between fundamental moral principles and prudential judgments is likely to vary from subject to subject and among concrete issues within various subjects. Proposals are welcome that assess specific cases such as: (1) the role of prudential judgments in a particular area of law or legislation, such as economic policy, foreign affairs, or sex and the family; (2) particular historical examples of the role of prudential judgments, or the historical development of prudential judgments on particular subjects.
Submission Information:
Please submit a 1-2 page proposal no later than 15 November 2005. Authors should indicate in the proposal how they intend to treat their topic and, if necessary, provide a rationale for inclusion of this topic in the conference agenda. It would also be helpful if authors would include brief biographical information and an e-mail address. Acceptance decisions should be made by 15 December 2005.
For further information or to submit proposals, please contact us at the address below:
Prof Thomas C Berg ([email protected]; 651 962 4918)
Prof Robert G Kennedy ([email protected]; 651 962 4823)
Terrence J Murphy Institute for Catholic Thought, Law, and Public Policy
University of St Thomas School of Law
MSL 400, 1000 LaSalle Avenue
Minneapolis, MN 55403-2015
Thursday, September 22, 2005
The Solomon Amendment Case Revisited
We've had discussions before concerning Rumsfeld v. FAIR, the Supreme Court case on whether law schools have a constitutional rigt of expressive association to refuse to allow military recruiters (because of the military's ban on gays) without being denied federal funding. Our discussions (for example, here, here, here, here, here, and here) have mostly concerned the relation between the issues in this case and important matters of subsidiarity. Georgetown Law School has collected Supreme Court briefs and other filings in the case here. Briefs of the government (petitioner) and its supporting amici have all been filed, and briefs of the law-school consortium (appellee) and its supporting amici are just appearing. Oral argument is set for December 6.
I've previously asserted that the Court should recognize a distinction between the rights of private law schools and the (much lesser) rights of state law schools. The theory is that while private entities are classic mediating institutions and enjoy constitutional rights of association, state entities are generally the targets of constitutional limitations rather than the beneficiaries, and because of their favored status in receiving compulsory-tax-supported funding, they are not classic mediating institutions either. That constitutional distinction is argued in the amicus brief of the Christian Legal Society and Alliance Defense Fund (supporting neither party in the case, since FAIR includes both private and state law schools). (I participated in a few discussions concerning the content of the brief but played no role in writing it.)
Tom B.
Response to Rick: Federalism and Moral Conflict
I appreciate RIck's thoughtful response to my question about whether the enforcement of federalism limits can ever create a serious moral conflict for a justice/judge. Rick makes clear that his suggestion "was not that positive law involves, always and in every context, such fact-ness that judges' decisions and obligations are beyond the reach of Catholic moral teaching." His argument is
only that, whatever Catholic teaching might be about, say, the best way to approach certain problems, the fact that Congress lacks the power to address or resolve every such problem is not, itself, something that really can conflict with Catholic social teaching.
I appreciate this, and I think that this is certainly right as a general matter. But what is it about federalism limits on congressional power that insulate them from any real moral conflict? Perhaps the implied answer is that some other level of government -- state and local, for example, is empowered to deal with the problem or injustice. But what if that level of government completely fails to deal with a serious injustice? To pick a not-too-remote example, suppose a justice in 1966 conscientiously concluded that under proper interpretation of the Commerce Clause, he would have to vote to strike down the Civil RIghts Act's prohibitions on discrimination in employment, restauraunt service, and lodging accommodations (on the ground, correct or not, that the Act was a police-power rather than a commercial regulation). Suppose the justice further concluded, in good faith (and I'd say reasonably) that blocking Congress from prohibiting discrimination would leave African-Americans in southern states subject to serious oppression and deprivation of basic human goods such as decent work and the ability to move with some freedom, and that the state and local governments would do nothing to correct the injustice (in fact, would support the discrimination vigorously). Shouldn't the justice in this situation feel a serious moral conflict? Or is it enough to say that the justice isn't stopping the states and localities from acting (even though he knows they won't do so)?
Tom B.
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