Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Friday, May 22, 2009

The Execution of John Fisher

Thanks to a friend on Facebook for passing on this clip, from Showtime's "The Tudors," presenting (movingly) the execution of St. John Fisher.   

Wednesday, May 20, 2009

"Sola Scriptura and the Constitution"

Great post, and discussion, at Vox NovaCheck it out.  Then, discuss.

Is there really an elephant -- or, at least, THAT elephant -- in the room?

Michael P. suggests that there is an "elephant in the room", and that is is captured with this question:

The sixty-four-dollar question:  Who is more unreasonable:  (1) One who denies that Christians (and others) can in good faith reasonably reject the position (even though, of course, one can reasonably accept it too) that unborn human life has the same moral status from the very beginning of its existence as it has as every later stage; or (2) one who rejects the position that unborn human life has the same moral status from the very beginning of its existence as it has as every later stage?

I suppose this elephant makes many appearances in our conversations about abortion, but it is not clear to me that this elephant made an appearance in the posts preceding Michael's, regarding President Obama's visit to Notre Dame, his calls for "common ground", and my own doubts about those calls. 

The fact that there is disagreement over the "sixty-four dollar question" -- and there is -- does not change the fact that, as Fr. Jenkins said in his introduction of President Obama, the Church -- and, he said, Notre Dame -- has a clear position with respect to this question.  So, for purposes of discussing whether or not it was consistent with Notre Dame's professed character and aspirations to honor President Obama, I'm not sure it matters that there is, in the broader conversation, disagreement among reasonable people with respect to the question.

Also, the fact that there is disagreement about this question does not speak, it seems to me, to my suggestion that hopes for dialogue and "common ground" are undermined by the fact that the Roe / Casey regime distorts the usual functioning of politics, and effectively guarantees one side in the "dialogue" a complete victory.

The question I asked Michael -- it is one to which his latest book, Constitutional Rights, Moral Controversy, and the Supreme Court, might speak -- is what he thinks of what I wrote here:

Given the Roe / Casey regime, though (and given Pres. Obama's clear plans with respect to judicial selections), it seems that the common-ground calls are really not much more than calls that pro-life Americans agree to re-brand the pro-choice position as "common ground".

In fact, the more I think about it, Michael's "sixty-four dollar question" would seem to strengthen my point:  If there is this disagreement among reasonable people, then the judicial overreach that is Roe / Casey seems all the more unjustified.  If President Obama were to call for the overruling of Roe, and appoint Justices likely to overturn it, and then invite a conversation about what our compromise, common-ground legal regime should be, I would -- notwithstanding my awareness that the resulting regime would fall short of what I believe justice requires -- cheer loudly.

Dan Philpott on ND graduation and ND Response event

My colleague, Dan Philpott (Pol. Sci.), has shared these typically thoughtful reflections on the graduation and protests, and also on the constructive, student-led event put on by ND Response:

 Today the controversies here at Notre Dame came to a head with the visit of President Obama.  Since the university announced that he was to be our commencement speaker, the airwaves have been humming, the blogs sizzling, the church buzzing, the bishop booming, Notre Dame's administration handling, the newspapers and magazines constantly volleying back and forth, airplanes flying overhead trailing signs with aborted fetuses, my kids pointing to the planes wondering what they are, trucks driving around town blaring that Notre Dame’s President, John Jenkins, has betrayed Jesus, RS feeds, tweeters, twitters, and other things of which I have not the slightest understanding.

I fear that the hubbub on campus is one that few people, including friends and family, will understand given the media coverage so far and even today after Obama’s speech.  The protesters who have been getting most of the coverage are the ones who have stood at the university gates holding placards of aborted fetuses, bullhorns, and the like and have been getting arrested for trespassing onto Notre Dame property.  This is because these protesters are not from Notre Dame but rather outsiders.  Seeing them, I can see why people sometimes think that anti-abortion people are mean-spirited and uninterested in reason.  They seem not to have much confidence in one of the pro-life movement's best tools: arguments.  Virtually every pro-life person I know on campus thinks these protesters are setting back the cause; not one of them is sympathetic.  But what I fear will not be understood is that there have in fact been two groups of protesters, these outside folks being one of them but another group being the students here at Notre Dame, who have organized very different kinds of events – like the extraordinary one that took place today. . . .

Continue reading

Tuesday, May 19, 2009

Misusing Fr. Ted's Civil Rights experience

In the Immanent Frame piece to which Michael links below, Michele Dillon writes:

Obama was clearly attentive to the cultural and geographical significance of the site of his speech and, fortunately for him, was able to use the words and actions of Father Ted Hesburgh, that most iconic of Notre Dame figures (and the university’s president-emeritus), to demonstrate his own thesis that common ground is achievable if and once we recognize that despite the intrusive divisions that set individuals at odds with one another, we all share a common humanity. Thus, as Obama recounted, if Ted Hesburgh could first bring together people of sharply divided opinions on race (members of the Civil Rights Commission) and then get them to talk—and fish—with one another, with the result that they formed the foundation for what became the Civil Rights Act of 1964, change on other divisive issues, though a steep challenge, is also possible. Obama’s story about Fr. Hesburgh and his fellow civil rights commissioners was a vivid reminder that once we find we have some particular everyday thing in common with others who otherwise seem strange and even threatening, that particular commonality opens the possibility that the divisions that characterize our lives might be bridged, however unevenly, so that a universal good is achieved.

This passage makes the same mistake I addressed in this earlier post, namely, it completely ignores the fact-on-the-ground that the Roe / Casey regime makes it impossible to have meaningful dialogue, and to pursue good-faith compromise and "common ground", on abortion.

When Fr. Ted gathered the members of the Commission together to talk and fish, he was doing so in a legal context that did not preclude those members from operationalizing in law the common ground at which they arrived.  It is disingenuous to suggest that Fr. Ted's good work with the Commission is analogous to Pres. Obama changing his website language or supporting improved adoption laws.  "Change" on this particular "divisive issue" -- abortion -- is, because of the Supreme Court's overreach, *not* possible, and Pres. Obama is committed (this is not, I assume, a controversial point) to making sure that this impossibility is preserved.  If the Court's caselaw actually permitted the enactment into law of the compromise at which, I am sure, the healthy majority of Americans would arrive, if asked to search for "common ground", then I would be the first to plead with Fr. Ted to invite Pres. Obama and Robby George fishing.  Given the Roe / Casey regime, though (and given Pres. Obama's clear plans with respect to judicial selections), it seems that the common-ground calls are really not much more than calls that pro-life Americans agree to re-brand the pro-choice position as "common ground".

Michael -- do you disagree?

More (great stuff) from Cardinal Bernadin

Here is a passage from Cardinal Bernadin's 1976 testimony before Congress in favor of the Human Life Amendment:

I begin with a fundamental principle. Abortion is not wrong simply because the Catholic Church or any church says it is wrong. Abortion is wrong in and of itself. The obligation to safeguard human life arises not from religious or sectarian doctrine, but from universal moral imperatives concerning human dignity, the right to life, and the responsibility of government to protect basic human rights. Commitment to a constitutional amendment to protect unborn

human life arises from these same basic principles. It is certainly true that the Catholic Church and many other Churches teach that abortion is wrong--just as they teach that racial discrimination is wrong, that exploitation of the poor is wrong, that all injustice and injury to others are wrong. So in my case and that of many other religious persons, religious doctrine powerfully reinforces our commitment to human rights. We are publicly committed on a broad range of domestic and international issues. Within the past week alone, Catholic bishops, continuing a practice of many years' standing, have testified before committees of Congress on full employment and on food stamps. No objections are raised when we give voice to our moral convictions on such matters as these--and that is as it should be. For it is not religious doctrine which we wish to see enacted into law; it is respect for human dignity and human rights--specifically, in this case, the right to life itself. . . .

 

Read the whole thing.  This testimony confirms, I think, that it is misleading to enlist Cardinal Bernadin in support of a "common ground" approach to abortion that rejects, as "all or nothing", calls for just treatment and equal protection for unborn children in law.

Cardinal Bernadin

Much has been made, in the post-Obama-at-ND commentary, of his (shrewd) invocation of Joseph Cardinal Bernadin.  (See, for example, this piece, at the wonderful site, The Immanent Frame.)  (Cardinal Bernadin, I remember, filed a powerful amicus curiae brief in the Supreme Court, as he was dying, arguing against the constitutionalization of a right to assisted-suicide.)

It strikes me as important to remember, though, that, for Bernadin, the “consistent ethic” idea was never intended to minimize the importance of the abortion question or to excuse opposition to legal protections for unborn children. He said, for example, in 1988, “I don’t see how you can subscribe to the consistent ethic and then vote for someone who feels that abortion is a ‘basic right’ of the individual.” And, in the same interview, he noted that “some people on the left, if I may use that label, have used the consistent ethic to give the impression that the abortion issue is not all that important anymore, that you should be against abortion in a general way but that there are more important issues, so don’t hold anybody’s feet to the fire just on abortion. That’s a misuse of the consistent ethic, and I deplore it.”

The “consistent ethic” is a call to do *better* than contemporary politicians tend to do, it is not an excuse for doing worse than they should.

UPDATE:  Cardinal Bernadin also testified, in 1976, in favor of the Human Life Amendment to the Constitution.  Clearly, his dedication to finding "common ground" did not stop him from believing that the law should protect unborn children. 

Sunday, May 17, 2009

Obama's speech

It was a beautiful day -- for me, a sad one, but also, strangely, a somewhat hopeful one -- at Notre Dame. 

There will be, in the days to come, a lot said and written about the various events and speeches at Notre Dame this weekend. (Try to find the text or video of the remarks given on the South Quad, at the event sponsored by ND Response, by Fr. John Rafael, of St. Augustine High School in New Orleans,  Moving stuff.)  I was not able to attend the main ceremony, so I had to follow President Obama's and Judge Noonan's remarks online. 

UPDATE:  Here is the video of the ND Response event. 

I admire Judge Noonan immensely, but wish -- on this particular occasion -- he had been a bit more direct.  For the careful listener, intimately familiar with Noonan's work and American history, there were some powerful thoughts.  I worry that the commencement audience, though, did not hear the challenge to President Obama's unfortunate embrace of injustice that, in my view, Judge Noonan's remarks contained.  

The President said, almost word-for-word what I expected he would be advised to say, and what was politically astute for him to say, and he did so well.  To my regret, he did not say "by the way, I've been a doofus when it comes to school choice, and I hereby resolve to put my popularity and charm to good use -- helping kids and promoting religious freedom -- and to appreciate the fact that I don't actually have to kow-tow to the teacher-unions.  Oh, and I also now understand -- having come to Notre Dame -- that it really is not such a good thing to constitutionalize a right to private violence against the most vulnerable human beings."  Maybe next time.

Over at America, Michael Sean Winters has this review of the President's address:  "[t]he speech handed the President’s opponents plenty of ammunition and showed the extent to which the Obama White House is tone deaf to Catholics and our concerns."  Fr. James Martin's take is more glowing.

So . . . what next?  Will Notre Dame do some honest self-assessment, and ask whether it really has done the kind of things that would make true what we were assured was true, namely, that Notre Dame is entirely and unswervingly pro-life, and "everyone knows" this, so there is no danger of the public getting the wrong idea that the honors accorded the President (the thunderous, sustained applause, the rhapsodic tributes, etc.) indicate an indifference on Notre Dame's part to the seriousness of the injustice involved in our abortion-law regime?  Perhaps.  I hope so.

UPDATE:  Amy Welborn has some thoughts and good questions, here

In particular, and for those who are inclined to welcome, and take as sincere, the President's stated interest in "dialogue", "common ground", "civility", etc.:  At some point, it is inescapable:  either the unborn child is a human being, and therefore entitled in justice to the protection of the laws, or (s)he is not.  The possibilities for, and parameters of, "dialogue" are, it seems to me, closely connected to the answer given this question.  Another point, about the relevance of law to all this.  For some of us, calls for "dialogue" and "working together" rings a bit hollow, when these calls take place in a context where the Roe / Casey regime has made it impossible for one side to secure any gains -- even "compromises" -- in politics.  It is one thing to say, "let's compromise on the abortion question", and then to work out the details of that compromise in politics.  In fact, President Obama's position is that "the Constitution permits hardly any regulations of abortion, and the government ought to subsidize abortion; that said, I'd love to work with you on securing increased funding for social welfare programs that I'm perfectly willing to hope will reduce abortion."  For some of us, though, meaningful dialogue would have to include consideration of the possibility that law is a part of the package of abortion-reduction measures.

Friday, May 15, 2009

More Americans "pro-life"?

Gallup says so.  I wonder -- is this really true?  If so, what does it mean?  What are the implications?

A critique of the modern university

Patrick Deneen has a bracing critique, here, of the modern "multiversity."  It's something of a gut-check for people (like me) who have a lot invested in the "Catholic university" project.  Are we on the wrong track entirely?  (HT, again:  Phil Bess).  A bit:

Our current universities no longer undertake what they were designed to achieve, and hence have become largely dysfunctional institutions whose activity - classical liberal education - exists in profound tension with their role - conveyors in the global meritocratic marketplace. It should be recognized that a vast chasm has arisen between what today's colleges and universities are for - the bestowal of credentials - and what they were designed to achieve - a liberal education. The truth is that our colleges and universities are palimpsests - a helpful word that describes a kind of recycled medieval parchment, so rare that it was used and re-used, with old writing often being removed for new and more updated text. Our institutions of higher education are most visibly palimpsests in their buildings: the ancient gothic structures recall a form of education that stressed religious training and vocation, just as the names of the offices of the university - professors (those who "profess faith"), deans (short for "deacon") and provosts (once, a high-ranking church official) - point to the older roles that were once religious and traditional. It is easy to deceive oneself that the universities have not fundamentally changed when one concentrates on the remnants of an eviscerated culture, but the truth is that the old writing has been erased and a new text determines the course of modern education.

Traditionalists and conservatives may decry the decline of liberal education at the heart of the modern university - and its replacement by a Left-wing agenda - but the deeper truth is that liberal education has been more fundamentally and powerfully displaced by demands of global competition. While traditionalists and conservatives might wish to apportion blame to the vast Left-wing conspiracy - particularly those increasingly irrelevant faculty whose postmodernism has become a form of stale institutional orthodoxy - the truth is that the rise of the Left faculty was a response to conditions that were already making liberal education irrelevant, a sort of pathetic and ultimately self-destructive effort to make the humanities relevant and "up to date." These purported radicals - mostly bourgeois middle-class former hippies - were not agents of liberation, but a deeper reflection of the reality of the irrelevance and neglect of the liberal arts in a dawning new age of global competition.

UPDATE:  Archbishop Wuerl on Catholic universities and the Church, here, at "The Catholic Key."