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.

Tuesday, September 9, 2008

America's new politics-and-election blog

By Rick Garnett

America magazine has a new blog called, well, "America Magazine's Election Blog."  Here's the announcement:

Our blog is designed to help teachers in civics, history, politics and journalism use the blog to stimulate discussion in the classroom, facilitate research projects by the students, and familiarize the students with Catholic social thought and what that tradition has to say about current events. The special election blog will run from September 8 through election day.

Each weekday morning, the blog will have a new posting by 8 a.m. EDT. This will be posted by our regular political blooger, Michael Sean Winters, author of the recently published book Left at the Altar: How the Democrats Lost the Catholics and How the Catholics Can save the Democrats. Additional posts from the

America staff will appear throughout the week. Students, like all readers, can post comments on these blog posts by the staff. Teachers can work with the America staff if they want their students to post blog entries also.

Now, I'm a regular reader of America (I was a Jesuit Volunteer, after all), and I enjoy the blog and Michael Sean Winters's work.  And, it seems to me that the stated mission of this new blog -- "to help teachers" and to "familiarize students with Catholic social thought and what the tradition has to say" -- involves a new challenge.  If the blog is to be true to that mission, it seems to me that the blog will have to work hard (as we all should do) to avoid one-sided, partisan, or polemical use or interpretation of "Catholic social thought."  It is encouraging that the blog links to a reasonably diverse array of political sites and blogs.  I hope the editors will invite contributions from reasonable and faithful Catholics who see the tradition playing out in ways that might, from time to time, depart from the magazine's editorial stance.

To be clear, I don't think group blogs have an obligation to be internally "diverse".  (MOJ is, but we are somewhat rare, I think.)  Most of the bloggers at, say, dotCommonweal seem to lean left, while most at the First Things blog probably lean right, and that's fine.  But America is setting out to create a resource for teachers, and I am inclined to think such a (worthy) project carries with it some responsibilities.  We'll see. 

UPDATE:  Here's a link to another election-related blog for Catholics.  (The short film, by Grassroots films, was -- I thought -- very powerful.)

Politics and Preachers

By Rick Garnett

The Washington Post has a piece today (here) about the campaign by the Alliance Defense Fund (from which, I should disclose, I have in the past received payment for legal work) to urge pastors and clergy to "endorse political candidates from their pulpits," in "violation" of "I.R.S. rules."  Worth a read.

I've written about the whole politics-and-preaching thing (here):

The government exempts religious associations from taxation and, in return, restricts their putatively "political" expression and activities. This exemption-and-restriction scheme invites government to interpret and categorize the means by which religious communities live out their vocations and engage the world. But government is neither well suited nor to be trusted with this kind of line-drawing. What's more, this invitation is dangerous to authentically religious consciousness and associations. When government communicates and enforces its own view of the nature of religion­i.e., that it is a "private" matter­and of its proper place, ­i.e., in the "private" sphere, not "in politics," it tempts believers and faith communities also to embrace this view. The result is a privatized faith, re-shaped to suit the vision and needs of government, and a public square evacuated of religious associations capable of mediating between persons and the state and challenging prophetically the government's claims and conduct.

That said, I'm skeptical with respect to the claim that it necessarily violates the First Amendment to tell churches that desire to receive tax-deductible contributions that they may not formally endorse candidates (there might, of course, be problems with enforcement and application).   I'm also skeptical, though, with respect to the claim -- asserted by someone quoted in the article -- that the ADF is encouraging "churches to violate core principles of our society."

For a very thorough treatment of the issue -- one that, I believe, is currently under submission to the law reviews -- see this paper, "Politics, Pulpits, and Institutional Free Exercise", by my friend and colleague, Lloyd Mayer.

Sunday, September 7, 2008

Inequality and "conservatism"

By Rick Garnett

We've discussed, many times here at MOJ, the issue of economic "inequality".  Is it the existence of large gaps between the richest and poorest what matters, or the economic well-being of most people, or the economic well-being of the poorest (considered apart from the gap between the poorest and richest), and so on. 

In today's NYT Magazine, David Frum has an interesting piece on related questions and he suggests that conservatives (or, more specifically, Republicans) in particular might want to worry more about inequality, i.e., the gap between the rich and the poor, than they sometimes have:

My fellow conservatives and Republicans have tended not to worry very much about the widening of income inequalities. As long as there exists equality of opportunity — as long as everybody’s income is rising — who cares if some people get rich faster than others? Societies that try too hard to enforce equality deny important freedoms and inhibit wealth-creating enterprise. Individuals who worry overmuch about inequality can succumb to life-distorting envy and resentment.

All true! But something else is true, too: As America becomes more unequal, it also becomes less Republican. The trends we have dismissed are ending by devouring us. . . .

Equality in itself never can be or should be a conservative goal. But inequality taken to extremes can overwhelm conservative ideals of self-reliance, limited government and national unity. It can delegitimize commerce and business and invite destructive protectionism and overregulation. Inequality, in short, is a conservative issue too. We must develop a positive agenda that integrates the right kind of egalitarianism with our conservative principles of liberty. If we neglect this task and this opportunity, we won’t lose just the northern Virginia suburbs. We will lose America.

Now, Frum is not writing as a Catholic.  It is not even clear he is writing as a moralist.  His worry seems not so much that a hollowing out of the middle (or, perhaps, upper-middle) reflects injustice, but that it bodes ill for the electoral fortunes of Republicans (because the very rich and the very poor tend to vote Democratic).  Such fortunes (whether of Democrats or Republicans) are, of course, not a subject of direct interest to this blog.  What is such a subject, though, I suppose, is how we ought to think about the role of law in facilitating, or remedying, this hollowing out.

History and Catholic Social Thought

By Rick Garnett

Next week, the readings for my "Catholic Social Thought" class are about the Tradition's historical backdrop and context.  So, there's Michael Schuck's essay on Catholic Social Thought from 1740-1890; Russell Hittinger's contribution to the Witte & Alexander volume, "The Teachings of Modern Christianity on Law, Politics, and Human Nature"; and some stuff on the rise of nationalism in the later 19th c., including in the United States, and the Church's reactions to it.

So, here's a question ... what developments, ideas, events, or persons strike you as particularly important, and particularly worth emphasizing, if one is trying to understand both (a) why the content of the Tradition is what it is (b) what, considered in the light of the Tradition, is most salient about our own time and context?

Friday, September 5, 2008

Bad news from Florida

By Rick Garnett

In the latest round of the Florida Supreme Court's apparent determination to block educational choice . . . they've now thrown off the ballot proposed amendments that would have repealed the State's Blaine Amendments, thereby opening the way to school-choice programs (like the one the Court had previously invalidated).  Grrrr.

The court did not explain its reasoning. Instead it issued a one-page ruling saying that the amendments could not go on the November ballot and that a full opinion would be issued later. Mr. Bush called the voucher ruling “heartbreaking” and said it could jeopardize the future of Florida’s voucher programs. A coalition of groups representing teachers unions, school boards and school administrators sued to block the amendments.

I am, I confess, a bit skeptical about direct democracy.  Still . . .

Thursday, September 4, 2008

Mark McKenna on abortion, Roe, and the election

By Rick Garnett

My friend and colleague, Mark McKenna, sent in these thoughts, regarding some recent posts by Greg Sisk, me, and others:

Rick, on your response to Tom, you write:  “The problem with Roe . . . is not just that because it facilitates wrong choices by private persons; it is also, and fundamentally, at odds with our constitutional structure and with democratic self-government.  As long as Roe is the law, We the People are not allowed to write into law the conviction — assuming that it is or becomes our conviction — that the unborn child ought to be protected from lethal private violence.”  Of course that’s precisely what constitutional provisions do, and what they are designed to do – to prevent people from writing into the law convictions that are contrary to the constitutional provision.  So, for example, we are not allowed to write into law a conviction, if we have one, that guns should be banned entirely because their availability inevitably leads to the destruction of innocent life.  The only question is whether or not we think the constitutional principle is a legitimate one (i.e., whether we accept that the 2nd Amendment protects private gun ownership unrelated to militia membership).  In the abortion context, the issue is whether the constitution in fact protects a right to privacy, and whether that right encompasses the right to choose an abortion.  The answer to that question may well be “no” (I think it probably is “no”), but it seems clear to me that it’s a question that can’t be answered except by application of some method of constitutional interpretation.  Unless you’re suggesting (and it doesn’t seem to me that you are) that Catholics must adopt a particular interpretive methodology, then the Roe question, I think, is not a “Catholic” question at all.  That doesn’t mean it’s not a legitimate question, just that the Catholic thing really shouldn’t be brought into the discussion.

On the broader point about what the best approach to abortion should be (aside from Roe), I think the best possible answer is that we would BOTH create the sort of social-welfare programs that (assuming this study is valid) seem to demonstrably reduce the incidence of abortion AND have the sort of symbolic statement you suggest.  But the fact is that neither party is offering both.  So, as voters, we’re left to determine what matters more, symbolism or reduction of the number of abortions.   [To be clear, there certainly are things the Democrats could do – things short of banning abortions – to reduce the number of abortions even more than the social-welfare programs would.  I have in mind here rejection of public funding, etc.  I think it’s deeply regrettable that the Democrats haven’t seen clear to this, though I do think it important to note that the study is about net effects, even accounting for some of the things you mention in your post, like public funding, etc.].

Greg, on the “personal witness” point:  I’m with Obama on the Bristol Palin story – it is, and should be, off limits.  Nevertheless, I think many of Palin’s supporters have been pretty hypocritical about this.  It seems obvious to me that Palin’s political salience derives primarily from her personal witness and not anything she’s done in public life – and indeed many of her supporters have focused on her personal witness when expressing their support.  That may be fine, but it sets up a real issue.  If personal witness matters, and should matter, in the sense that we should be attracted to her candidacy because of her choices regarding her youngest child, then one can’t be surprised if people suggest that her daughter’s pregnancy ought to be counted in the evaluation of her personal witness.  You can’t have it both ways. 

Wednesday, September 3, 2008

"Country first" . . . Rob's right

By Rick Garnett

Rob, I agree with you.  For Catholics, "country" is not, really, "first".  (Does it even come before "Notre Dame"?)  In a way, were the Blanshard-ites right?  The Church is -- Christ is -- and has to be "first".  But, seriously . . . do you think that the people in the hall really mean "country first" literally?  Of course not.  It's a political convention.  Those folks -- like most of us -- will go home and, in their day-to-day lives, put spouses, kids, career, friends, town, church, and football teams "first."  (By the same token, I can't believe that the intelligent people in Denver last week really believe that "[they] are the change [they] have been waiting for".) 

Some folks will suffer great pain, and make great sacrifices for, their "country".  But, let's not kid ourselves . . . most of us -- most at the GOP convention, and at the Democrats' convention -- would not.  Pain hurts, after all.  (Humiliating those who disagree with you is -- as the recent rounds of loathesome blogospheric "it's not her baby!" and "look at his my-space page!" cauldron-clatches have shown -- much easier.)

In the same vein, I think it's pretty clear that no serious Catholic should ever be caught chanting slogans or waving signs (without tongue firmly in partisan cheek) to the effect that a presidential candidate is the spes that saves.

Monday, September 1, 2008

Response to Tom

By Rick Garnett

Tom's response to Greg and me is, as one would expect, entirely reasonable, fair, and thoughtful.  I understand the desire of those "who think that Republicans have a very bad recent record on many other important issues" to "want there to be a payoff in real abortion reduction from electing someone who would continue a number of those other policies."  Because I think that, notwithstanding the blemishes on the Republicans' record, the Democrats have, in my lifetime, a more-bad record on many issues that I care about, I realize that I am not facing exactly the same choice as Tom is. 

To be clear:  I am under no illusion that the election of John McCain, or even the reversal of Roe v. Wade, would end or dramatically reduce the number of abortions. I *do* believe that a world in which legislatures have the option of regulating abortions more closely and of not funding them is more likely to have fewer abortions than the one that is coming if the Freedom of Choice Act is passed (even if the latter world includes the social-welfare programs Tom supports).  But, I'm willing to assume it's a wash.

For me, as I wrote here, it is simply not possible (putting aside my passion for school choice, my worries about threats to religious freedom, my preferences with respect to judicial nominees, etc.) to vote for an administration -- even one headed by a charismatic and occasionally inspiring man like Sen. Obama -- that is so beholden to the premise that the intentional destruction of an unborn child (for any reason, at any time) is, ultimately, one that, as a matter of morality, *must* rest entirely with the person contemplating bringing about that destruction (and to aggressively combatting the expression of those who believe otherwise).

I'm not saying that decent, faithful, Catholic people cannot find their way to doing what is not possible for me to do.  (Sure, these people are mistaken, but we all make mistakes.)  But, as I wrote here:

The problem with Roe . . . is not just that because it facilitates wrong choices by private persons; it is also, and fundamentally, at odds with our constitutional structure and with democratic self-government.  As long as Roe is the law, We the People are not allowed to write into law the conviction — assuming that it is or becomes our conviction — that the unborn child ought to be protected from lethal private violence.  The debate is cut off; the conversation is silenced; the "dialogue" that is so often celebrated by the same people who are enthusiastic about Sen. Obama is distorted.

What is at stake in the abortion debate — and, as someone who has known and admired Doug Kmiec for years, I am sorry that he seems to be forgetting this — is not only reducing the number of abortions and helping women considering abortion to find their way to a different choice (though, of course, such reductions and help are important, and one wishes that Democrats for Life had more influence); it as about repairing the damage done to our political community, and to our constitutional order, by a decision that declared that the Constitution itself disables citizens from protecting in law the most vulnerable among us.

In my view, whatever the advantages of an Obama administration as compared to a McCain one (and I'll assume, for present purposes, that there would be some), they are, for me, just not enough.  One can be wrong about a lot, but one needs to be right about this.  The pedagogical and symbolic effect of the Roe / Casey constitutionalization of a gravely misguided morality, and moral anthropology, is, I think, more to be regretted than the effects of any current policies that one can reasonably expect to be revised significantly by an Obama administration.  Or, so it seems to me.

Sunday, August 31, 2008

A quick comment on Gov. Palin

By Rick Garnett

Our friends at dotCommonweal are having their own (occasionally heated) conversations about the wisdom and politics of the Gov. Palin pick in the comments boxes to various posts.  There are also some posts at the First Things and America blogs; I assume MOJ readers know all about them.  Ours is not primarily a politics blog, so I won't dwell on this, but I can't resist . . . I first heard of Sarah Palin back in 1982, when I was an eighth-grade high-school-basketball-wanna-be in Anchorage, Alaska and she was, up the road, leading her Wasilla High School team to the state championship.  I'll admit, I'm feeling (a rare feeling, I assure you) exceptionally savvy, having blogged about Gov. Palin's "pro-life witness" last month and having suggested to a few friends, months ago, that she could be the VP pick. 

We're (none of us) political consultants here, so I guess we'll have to wait and see whether this pick turns out to be more "risk" than "reward" for Sen. McCain, but I'll confess to being happy, and cautiously optimistic, about it.  If nothing else, it could be a "teaching moment" about the dignity of disabled children and the courage and inspiration of their parents.

UPDATE:  Well, after a day or so of some pretty gross rumor-mongering, it turns out that . . . Gov. Palin's 17-year-old daughter is pregnant (and keeping the baby).  Here's the statement:

We have been blessed with five wonderful children who we love with all our heart and mean everything to us. Our beautiful daughter Bristol came to us with news that as parents we knew would make her grow up faster than we had ever planned. We're proud of Bristol's decision to have her baby and even prouder to become grandparents. As Bristol faces the responsibilities of adulthood, she knows she has our unconditional love and support."

Bristol and the young man she will marry are going to realize very quickly the difficulties of raising a child, which is why they will have the love and support of our entire family. We ask the media to respect our daughter and Levi's privacy as has always been the tradition of children of candidates.

I can't resist:  This statement compares favorably to "punished with a baby", I think.

Jonathan Watson on punishment theory

By Rick Garnett

MOJ-reader Jonathan Watson has posted a new paper on SSRN.  It's called "Punishment Calibration and Empirical Desert", and it's available here.  Abstract:

Professor Paul Robinson's major focus for many years has been punishment theory. He (among others - principally John Darley, a social psychologist), has gradually developed a theory of punishment called "empirical desert." Empirical desert is the idea that distributive theories of criminal liability and punishment must be based in the "community's notion of justice" if they are to have community respect, and thereby, effectiveness. Professor Adam Kolber also works in the area of punishment theory. His recent work, The Subjective Experience of Punishment , focuses on the idea that as all humans experience pain and suffering in different ways, punishments ought to be tailored accordingly, usually exemplified therein through variation on punishment locale or length. Examining Prof. Kolber's work through the lens of empirical desrt reveals potential problems which could arise for proponents of punishment theory. This paper discusses the two theories at length, outlines the problems which arise at their intersection, and suggests ways in which they might be reconciled.

Sounds fascinating.

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