No one could have had any doubt, of course, that an op-ed -- to which Michael P. linked recently -- enthusiastically validating President Obama's call for judges with "empathy" was in the offing from (the post-Romney-exit) Prof. Kmiec. The pre-Spring-of-2008 Prof. Kmiec, though, would have been quite skeptical of many of the assertions in the piece.
Put aside the doubts one might have regarding the suggestion that "empathy" yields particular results in cases like Ledbetter and Heller (the latter decision, of course, Pres. Obama claims to agree with). It continues to disappoint many of us, who regarded Prof. Kmiec as a thoughtful and conscientious lawyer, that he seems entirely unburdened by a felt obligation to admit that, and explain why, he has changed his mind on so many matters having to do with law and policy. Changing one's mind, of course, is fine; a scholar, though, owes it to himself, and to those who once took the time to read him, to explain the change. This is particularly true when the change-of-mind is accompanied by an unattractive tendency to mock the very positions (e.g., "originalism") the-one-mocking once held.
For example, with respect to abortion, Kmiec complains that "[c]onservative law professors helping GOP presidential candidates [that is, "conservative law professors" like Kmiec, before Gov. Romney quit the race] would insist that this choice be made criminal." It has long been Kmiec's (at least, it long was Kmiec's) view that the Constitution requires the outlawing of abortion. (It does not.) Most "conservative law professors", though, hold simply that the Constitution permits (but does not require) abortion to be closely regulated. (It does.)
With respect to same-sex marriage, Kmiec says, "[i]f the California Supreme Court, for example, chooses to uphold Proposition 8 in a way that validates the selective oppression of one class of citizens, the empathy animating federal equal protection will be put to the test." To say that Doug Kmiec, until very recently, would have had his doubts about the claim that limiting "marriage" to unions between a man and woman constitutes the "selective oppression of one class of citizens" is to understate things considerably.
I should say that I get no pleasure pointing out, again and again, that Kmiec -- putting aside the question whether or not his current views are right on the merits -- has failed to explain himself, and that he should. It is uncharitable to those he now sniffs at for him to act as though no one notices that he is cheerily carrying water now that he would, until quite recently, have regarded as skunky.
Michael, what is your view? You, like Kmiec, have been a constitutional-law scholar for decades. On several important matters, you have changed your mind, and candidly, powerfully (I think) explained why. Shouldn't Kmiec do the same?
Wednesday, May 6, 2009
This is great. Seriously, check it out:
Human rights became the reference point of a shared universal ethos – at least at the level of aspiration – for most of humankind. These rights have been ratified by almost every State in the world. The Second Vatican Council, in the Declaration Dignitatis Humanae, as well as my predecessors Paul VI and John Paul II, forcefully referred to the right to life and the right to freedom of conscience and religion as being at the centre of those rights that spring from human nature itself.
Strictly speaking, these human rights are not truths of faith, even though they are discoverable – and indeed come to full light – in the message of Christ who "reveals man to man himself" (Gaudium et Spes, 22). They receive further confirmation from faith. Yet it stands to reason that, living and acting in the physical world as spiritual beings, men and women ascertain the pervading presence of a logos which enables them to distinguish not only between true and false, but also good and evil, better and worse, and justice and injustice. This ability to discern – this radical agency – renders every person capable of grasping the "natural law", which is nothing other than a participation in the eternal law: "unde…lex naturalis nihil aliud est quam participatio legis aeternae in rationali creatura" (St. Thomas Aquinas, ST I-II, 91, 2). The natural law is a universal guide recognizable to everyone, on the basis of which all people can reciprocally understand and love each other. Human rights, therefore, are ultimately rooted in a participation of God, who has created each human person with intelligence and freedom. If this solid ethical and political basis is ignored, human rights remain fragile since they are deprived of their sound foundation.
The Church’s action in promoting human rights is therefore supported by rational reflection, in such a way that these rights can be presented to all people of good will, independently of any religious affiliation they may have. Nevertheless, as I have observed in my Encyclicals, on the one hand, human reason must undergo constant purification by faith, insofar as it is always in danger of a certain ethical blindness caused by disordered passions and sin; and, on the other hand, insofar as human rights need to be re-appropriated by every generation and by each individual, and insofar as human freedom – which proceeds by a succession of free choices – is always fragile, the human person needs the unconditional hope and love that can only be found in God and that lead to participation in the justice and generosity of God towards others (cf. Deus Caritas Est, 18, and Spe Salvi, 24).
Tuesday, May 5, 2009
Responding quickly to Rob's latest: I agree (and long have agreed) with Sr. Prejean that Texas's clemency-and-commutation procedures are a farce. Certainly, then-Gov. Bush could have worked to reform (but just as certainly had no interest in reforming) these procedures. Still, if we are asking for "nuance", context, etc., it seems to me that we should -- and Fr. McBrien did not -- take into account the role and actual power of the person in question. The Governor of Texas, it seems to me, is not responsible for an execution in Texas in the same way that, say, President Obama is reponsible for the recent policy changes on embryo-destructive research. (Again, just so there is no misunderstanding: I oppose capital punishment, and think that a Catholic university that takes its Catholic character seriously would want to take a politician's views and record on that issue into account when deciding whether or not to honor that politician.)
I cannot speak for others, but I am pretty sure that in none of my various interventions on the matter have I said that a Catholic university could never honor a politician with pro-abortion-rights views (or, for that matter, pro-death-penalty views, which is not to say that these two issues are indistinguishable). For me, what makes the Notre Dame invitation, on balance, regrettable is the timing, context, and social meaning of the honor (and also the extremely sad fact that Notre Dame is finding itself at odds with so many bishops), not the mere fact that President Obama is, in an abstract or theoretical sense, "pro-choice." (I can't resist noting that, for me, his anti-choice stance on education reform would -- wholly and apart from the "life issues" -- make it hard for me to cheer, but that's another matter.)
Rob writes, "[t]here's a big difference between my decision in the voting booth and a university's decision on commencement, of course. The university's decision carries the risk of causing scandal and confusion as to the Church's moral teaching. But while that might change the particulars of the inquiry, it need not change the overall nature of the inquiry." I'm not sure how exactly, or to what extent, it changes the nature of the inquiry, but I do think it does, and for the reasons Rob says. The university "speaks", publicly, when it honors someone, and it is important to say the right thing (or, at least, not a wrong thing). Given the timing of the President's acceptance, and the salience of abortion and stem-cell research, I think the university should not have taken the risks it did that by honoring the President, it would be seen as minimizing the seriousness of these issues.
Anyway . . . moving forward, it seems to me that Notre Dame -- to which I am perhaps excessively committed -- has, with this invitation, taken on the burden of making clear, with real actions, to the world that it is, in fact -- as Fr. Jenkins has several times said -- unwaveringly committed to the sanctity of life. (Imagine what it would say if, at halftime during a football game, once of those "What would you fight for?" ads featured the work of one of the many Notre Dame students, faculty, or graduates working in the pro-life arena?)
With respect to Fr. McBrien's piece -- to which Michael P. linked -- on the "double standard" he sees at work in some people's opposition to Notre Dame's decision to honor President Obama: Is it relevant that, in Texas (at the time George W. Bush was governor, anway), the Governor only has the power to commute a death sentence upon the recommendation of the Board of Pardons and Paroles? (I ask this, obviously, not because I believe that Gov. Bush would have been generous in commuting death sentences.)
I am, of course, entirely open to the argument that Notre Dame's Catholic character should require it to withhold special honors from politicians for many reasons, not only their unjust positions and records on abortion. But, is it really the case that a governor who "presides" over executions (that he lacks the power to stop) is similarly situated, for purposes of deciding whether a not a Catholic university should, consistent with its character, bestow an honor, to a legislator who votes to expand abortion rights, to limit regulation of abortion, and to increase funding for abortions, or to an executive who makes it the case, by executive order, that public funds may be used to destroy-through-research human embryos?
