There's a lot to think about in Eduardo's response to George Weigel (here). He is right, of course -- and I suspect that Weigel would agree -- that there is an important "distinction between morality and law in Catholic legal theory." We all agree that the law need not, and should not, prohibit every vice. (And, I'm glad he believes that a faithful, engaged, intelligent, informed, and well-formed Catholic -- like me! [insert smiley-face emoticon here] -- can vote for Sen. McCain.)
I do not agree, though, with Eduardo's view that laws permitting abortion should be distinguished from racial-segregation laws on the theory that "in the context of abortion, it is private parties doing the evil, with the law merely failing to stop them." I just don't know that the public / private thing is all that helpful here. For starters, let's recall, but then put aside, the fact that in the curent debate, we are talking not just about laws permitting lethal violence by private persons, but laws that will increase public funding for this violence, laws celebrating the choice to engage in such violence as a "fundamental right", laws that will impose burdens on pro-life health-care workers' consciences, and laws that will roll back legal protections from such violence that currently exist.
The bigger problem, for me, is that what our abortion regime does is, I think, best described not as "merely failing to stop" abortions, but instead as "prohibiting political communities from extending to some persons -- unborn children -- legal protections that other persons enjoy and that unborn children have a right, in justice, to expect." Our regime denies to some people -- indeed, it withdraws from some people -- that which is their due, and with grim consequences. It seems to me that it is the case, to use Eduardo's words, that "the law itself . . . is doing the intrinsic evil" (i.e., denying the personhood of, or the rights due to, an innocent, vulnerable person).
Don't get me wrong -- it is, I agree, important in many circumstances to distinguish between cases where law tolerates evil and those where law does evil. Our abortion laws (unlike, say, our First Amendment doctrines dealing with obscenity and pornography) strike me as falling in the latter category.
UPDATE: A student of mine, Edward Highberger, writes:
I am probably misunderstanding Prof. Penalver's post on Mirror of Justice regarding George Weigel's recent Newsweek article, but this claim Prof. Penalver makes strikes me as wrong:
"Consider, for example, Weigel’s reference to legal segregation. This is inapt, since in that case it is the law itself that is doing the intrinsic evil (i.e., racial subordination), whereas in the context of abortion, it is private parties doing the evil, with the law merely failing to stop them."It seems to me that in the case of the abortion regime, the law itself is also intrinsically evil. The Supreme Court effectively holds that the U.S. Constitution prohibits States from enacting legislation that affords fundamental human rights to a particular class of persons--the unborn. In other words, federal law isn't just permitting private actors the "right" to procure an abortion. It mandates the subordination of the rights of unborn children to that of their mothers by barring state legislatures from enacting laws that would limit the mother's countervailing interest in reproductive freedom.
Similarly, Prof. Penalver is wrong to implicitly analogize the current abortion regime to the legal regime that existed prior to the enactment of federal civil rights legislation. Even before federal law prohibited private actors from engaging in certain types of discrimination, the States were presumably free to regulate such conduct. In that case, federal law really did just "fail[] to stop" private discriminatory acts. However, in the case of the current abortion regime--where states are forbidden to enact legislation protecting unborn life--federal law isn't merely tolerating private actors obtaining abortions, it is actively excluding a class of persons from protection under state or federal law. As Weigel originally asserted, this seems more analogous to legal segregation.
"Public Discourse" is the not-blog (though it is kind of like a blog) of the Witherspoon Institute at Princeton. Here is the link, and here is a description of the not-blog's mission and a list of the (impressive array of) contributors. A bit:
We call it Public Discourse: Ethics, Law and the Common Good for three simple reasons. First, the topics we cover all center on public life. Second, we approach these topics using methods of discourse that are inherently public, open and accessible to all fellow citizens. Third, we contend that at the heart of our public debates are ethical questions - questions about good and bad, right and wrong, just and unjust. As to our approach, we rely on neither revelation, emotivism, nor majoritarianism. Rather we aim to address these questions rationally through critical reflection on man's nature, his personal and communal flourishing, and the ethical principles that should guide his conduct.
Aristotle taught that the central question of political life is how we ought to order our lives together. This is an inherently ethical question. Whatever the pressing question of the day may be - debates surrounding economic policy, biotechnology, international relations, marriage and the family, constitutional law and religious liberty - they all entail ethical positions.
Sounds good!
Here's George Weigel, in Newsweek, discussing Prof. Kmiec, et al.:
. . . [Kmiec's and others'] argument, in sum: the constitutional and legal arguments that have raged since Roe vs. Wade are over, and Catholics have lost; there are many other "intrinsic evils" that Catholics are morally bound to oppose, and Republicans tend to ignore those evils; liberalized social-welfare policies will drive down the absolute numbers of abortions and Senator Obama is an unabashed liberal on these matters. Therefore, a vote for Obama is the "real" pro-life vote.
The argument is, some might contend, a bold one. Yet it is also counterintuitive, running up against the fact that, by most measures and despite his rhetoric about reducing the incidence of abortion, Barack Obama has an unalloyed record of support for abortion on demand. Moreover, he seems to understand Roe vs. Wade and subsequent Supreme Court decisions as having defined abortion as a fundamental liberty right essential for women's equality, meaning that government must guarantee access to abortion in law and by financial assistance—a moral judgment and a policy prescription the pro-life Catholic Obama boosters say they reject. . . .
There's a lot more.
In my view, there are (at least) two different positions that a pro-life Obama supporter might take: The first is to say, "yes, abortion is the defining moral issue of our time, and not just one issue among many, but Sen. Obama is -- all things considered -- the better candidate on abortion, and not just with respect to "life issues" generally, and so that's why I'm for him." This position, in my view, does not stand up to scrutiny. Nutshell version of my view, which regular MOJ readers have probably encountered more than they'd like: All things considered, the policies of an Obama administration are not likely to reduce the number of abortions; an Obama-selected judiciary would be unlikely to move constitutional law in a direction friendly to reasonable abortion regulation; and, numbers aside, the question for pro-life Catholics should not be simply "how many abortions are taking place?" but "are we excluding unborn children from the protection of the law, to which they are entitled in justice as a matter of human rights."
Another position would be to say, "Sen. Obama is dead-wrong on abortion; his views are odious, and his plans and policies with respect to abortion are repugnant. And yet, he is right on many other things that I care about -- some of which are, I judge, also very serious moral issues. Indeed, Sen. McCain has odious and dead-wrong views on some very serious moral issues, too. So, all things considered, I will vote for Sen. Obama as the lesser of two evils, even though I know -- I wish it weren't so, but I know it is -- his election will set things back on the abortion front." This second position is easier for me to understand (although I do not endorse the premise that there are lots of morally serious issues on which Sen. Obama's likely-to-be-enacted-into-policy views are clearly better than Sen. McCain's) and, until this election cycle, it seemed to be the more common one among my pro-life Democratic friends. Any thoughts about what (if anything) has changed?
UPDATE: A reader writes:
I think what changed is that in the 2004 election cycle, many pro-life Republicans argued for the primacy of abortion over other issues, in particular the war in Iraq, because of the scale of abortion -- 1 million abortions per year was orders of magnitude greater than the detahs caused by war, or the number of those who had been tortured.
So in this election cycle, pro-life Democrats are under the impression that efforts to reduce the number of abortions are sufficient. If the problem with abortion is its scale, then a valid response should be to reduce that scale, right?
There are several problems with this way of thinking, but I think the arguments from 2004 paved the way for it.
UPDATE: My friend and colleague, Mark McKenna, writes:
I think I sort of agree with your characterization of the two pro-life Obama
> positions. But I think I would characterize my own position as something of
> a combination of the two:>
>
> I disagree with Obama on abortion. I think at least some of his positions
> are odious. But I also think that some of the other things he will do are
> likely to have a substantially positive impact on the number of abortions.
> I don't know for sure the full net effect of all those policies. So I'm
> left with disagreement on a serious issue, somewhat (at least) offset by the
> impact of other policies on the problem. If that was it, and it was
> otherwise a close call, that might not be enough for me to tip in favor of
> Obama. But I do believe that "Sen. McCain has odious and dead-wrong views
> on some very serious moral issues, too." So I guess I think that's an "all
> things considered" view, but probably not as strongly as you imply.
>
> I think that's something of a combination of the two, though probably more
> (b) than (a).
Sunday, October 12, 2008
Michael linked to Prof. Kmiec's review of Arbp. Chaput's "Render Unto Caesar". (He is not the reviewer I would have expected, given that "Render" is a pretty forceful critique of Kmiec's current thinking about politics and abortion.) In any event, for another review of "Render" -- by a Commonweal blogger, as it happens -- see Fr. Robert Imbelli's, here.
Kmiec's review also discusses Chris Korzen's and Alexia Kelley's "A Nation for All". He writes that "Korzen and Kelley demonstrate how emphasizing anti-Roe strategies alone sits uneasily with the church’s promise of religious freedom to all in Vatican II’s Dignitatis humanae (1965)." It surprises me that Kmeic wrotes this, since I would not have thought he believes that Dignitatis poses any barrier to making it possible (by reversing Roe) for citizens to choose to do what Kmiec (and Pope Benedict, whom Kmiec quotes) think they should do, i.e., protect unborn children in law from private lethal violence. One can agree (as I do) with our MOJ-friend Fr. Greg Kalscheur that Dignitatis does provide support for arguments against morals legislation that does not relate to the public good; still, the claim that Dignitatis provides support for those who think that Roe ought not to be overturned, or that abortion regulations involve the imposition of specifically religious notions, is, it seems to me, a long way from plausible.
Kmiec also writes, "[t]o reduce abortion they suggest providing health care and economic assistance to women and families, robust alternatives such as support for adoption and appropriate and effective sex education for young people, and a host of other policy measures that have proved capable of reducing the abortion rate in the United States and around the world. Thanks to the efforts of Sen. Obama, much of that language is now in the Democratic Party platform." I suspect -- I have not read the book -- that Korzen and Kelley do not contend that the other likely fruits of the "efforts of Sen. Obama" -- e.g., the repeal of pro-life limits on federal funding of abortions, at home and abroad -- are likely to reduce the abortion rate. After all, it seems hard to reduce the incidence of something that one (a) celebrates as a fundamental right; (b) subsidizes financially; and (c) insists should be free from existing limitations.
Kmiec also says, "is a Catholic voter supposed to overlook how the Republican Party has failed to deliver Roe’s reversal in thirty-five years?" Of course, as Kmiec knows, the failure to "deliver Roe's reversal" is at least as much the result of Democratic-led confirmation battles that have made it extremely difficult -- yet, somehow, Republican Presidents have succeeded four times since Reagan was elected -- to get Justices who understand Roe's error confirmed. We could just as well ask why a Catholic voter should overlook "how the Democratic Party has blocked -- indeed, demonized -- efforts to deliver Roe's reversal for thirty-five years."
Friday, October 10, 2008
I could -- but am not going to (UPDATE: Ok, I will. Warning: Some very graphic stuff. Not family friendly) -- post a bunch of links and clips to web sites (Kos, HuffPost, Andrew Sullivan, etc.), TV shows (Rachel M., Keith O.), news stories, etc., to the effect that partisans on the left are, like partisans on the right, engaging in "misplaced populism, uncritical sloganeering, hostility toward questions directed at factual predicates, and ugly hostility toward those who come to different judgments about policy vehicles". I say "not going to" not to be obnoxious or stubborn, but because, again, I'm pretty sure that this is not the kind of dispute -- i.e., the dispute about whether the "left" or the "right" is more nasty, close-minded, whatever -- that can be resolved in a way that reflects anything other than the putative resolver's point of view. This is not to say that there is no "truth of the matter", but only that Eduardo and I -- notwithstanding our respect and affection for each other -- are not likely to agree about it. (Come to think about it, a lot of debates about who's oppressing whom in Catholic contexts are like this, too. Some perceive overwhelming "conservative" pressures and dominance, others perceive stifling "liberal" ones. The disagreement, in my experience, is hard to adjudicate.)
That said, I don't think, as Eduardo suggests, that he and I are watching different campaigns. I make a point, actually, of making sure (Cass Sunstein will be pleased!) to read and watch a wide range of sources, to avoid the cascade / bubble problem.
I saw the show, actually, where Gergen handwringingly said what Eduardo quotes him as saying, and - I have to admit -- groaned and rolled my eyes. It struck me as little more than a transparent (and troubling) effort to try to marginalize Sen. Obama's critics and discredit (what strike me as) reasonable concerns about his views, past, plans, and associations.
Thursday, October 9, 2008
Communion and Liberation, the Catholic lay movement, has issued a statement with respect to the election called "What We Hold Dear". Here's a bit:
[T]wo concerns matter most to us and we will vote according to which candidates and parties demonstrate an authentic care for these concerns.
First: Freedom of Religion. Political power must recognize faith’s undeniable contribution to the defense and broadening of human reason and its promotion of authentic human progress. This is a guarantee of freedom for everyone, not only for Christians. And this freedom must include the freedom to speak, convince, act, and build in the public square; religious freedom relegated to one’s private life is not religious freedom at all.
Second: The Common Good. Those who hold political power must do so as a service to the common good of the entire nation.
We consider the recognition and defense of three self-evident truths regarding human beings the minimum commitment to the common good: the right to life from conception to natural death; the irreplaceable value of the family, founded on the marriage between a man and woman; and freedom of education.
