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.

Saturday, December 29, 2007

Michael's "no brainer"

My first reaction to Michael's call for higher taxes on beer and wine was to knock off a witty post to the effect that my good and Catholic friend Michael had been kidnapped by aliens from the Planet Puritron, from the galaxy of Prohibitia, and is now part of a plot to use the resources of Catholic Social Thought to advance decidedly non-Catholic (i.e., tee-totalling) aims. 

But I decided against that.  More seriously, folks . . .

I agree with Michael that, as a rule, it seems the costs (broadly understood) of behavior should fall on those who engage in the behavior.  Of course, we'd also want to ask whether the benefits of the behavior in question are similarly internalized; if someone is dispensing benefits (for which she is not being compensated) through her behavior, she might have a decent argument against bearing the full costs of that behavior.  This might be a relevant distinction between tobacco -- which benefits no one besides the immediate user -- and alcohol, which does.  (I take it that sociability, conviviality, and well run dinner-parties are good things.  Second-hand smoke is not.)

Beyond that -- and I'll defer to tax-policy jocks on this one -- it is my understanding that many tax-experts question the wisdom and utility of using targeted taxes -- as opposed to other means -- to raise the costs of particular behaviors, in the hopes of changing those behaviors.  But -- to be clear -- I don't know enough about the issue to make me confident that using targeted taxes in this way is, generally, unwise.

On being educated by Tom Berg . . .

I'm grateful to Tom Berg for correcting my mis-understanding about Vision America, and its relationship with the so-called "Christian Reconstruction" movement.  It seems to me that there is a line -- a very important one -- between the "Reconstruction" vision and the (to me, entirely appropriate) call of many politically engaged Christians for a restructuring of American policy in accord (to the extent possible, given the messiness of politics) with morality (and the virtue of prudence).  If, as Tom suggests, I put Vision America on the wrong side of that line, then I apologize.

Thursday, December 27, 2007

"Stem Cells and the President"

A good read, from Jay Lefkowitz:

. . . We do not know enough yet to say whether, or to what degree, Bush’s refusal to allow federal funding to create new embryonic stem-cell lines played a role in compelling scientists to find a different approach to the issue. We do know that, in the aftermath of last November’s announcement, several leading scientists have suddenly testified in public to having harbored the very same moral doubts that led Bush to his 2001 decision. James Thomson, the foremost stem-cell researcher in the United States, put it plainly: “If human embryonic stem-cell research does not make you at least a little bit uncomfortable, you have not thought about it enough.”

This was not, to put it mildly, a view openly expressed by the scientific community in the years between Bush’s decision and the discovery of the new method. But remarks like Thomson’s, and the fact that a scientific advance unthinkable in 2001 has rendered one of the ugliest controversies of the decade all but moot, suggest that it is time to revisit Bush’s decision to see what lessons can be drawn from it. . . .

Now that the debate seems to be over, what can we say about Bush’s policy and the long months it took for him to devise it? I think it is fair to look upon it as a model of how to deal with the complicated scientific and ethical dilemmas that will continue to confront political leaders in the age of biotechnology. Bush refused to accept the notion that we must choose between medical research and the principle of the dignity of life at every stage. He sought both to advance biomedical science and at the same time to respect the sanctity of human life. In the end he came to a moderate, balanced decision that drew a prudent and principled line. The decision was both informed and reasoned, based on lengthy study and consultation with people of widely divergent viewpoints. It was consciously not guided by public-opinion polls.

As I write these last words, I am aware that they may sound like political spin. That is far from the case. There were many other contentious issues on which I advised the President—affirmative action, gay marriage, contraception, offshore oil and gas exploration, international trade, patent protection, even veterans’ benefits. In each of these, political considerations and calculations played at least some role in the development of policy, as they always have and always will. What made our deliberations on the stem-cell issue unique was, precisely, the absence of that element. Bush knew that whatever his decision, it was bound to alienate millions of Americans. Their ranks would include both political supporters and many who, if the decision went another way, might be drawn to reconsider their aversion to him. Our discussions were focused throughout on reaching a coherent and consistent position where the President could stand with honor for as long as the facts on the ground remained as they were. We did not dwell at all on how that position would play politically.

In the coming decades, scientific advances will compel Presidents and politicians to confront vexing choices on subjects that were once solely the province of dystopian science fiction: human cloning, fetal farming, human-animal hybrid embryos, and situations as yet unimagined and unimaginable. If we are to benefit from the great promise of the age of biotechnology while preventing grave ethical abuses, we can only hope that future Presidents will be guided by the same seriousness with which George W. Bush pursued the question of stem-cell research, as well as by his stout refusal to be seduced by the siren song of political expediency.

Tuesday, December 25, 2007

Chesterton for Christmas

The Christ-child lay on Mary's lap,
His hair was like a light.
(O weary, weary were the world,
But here is all aright.)

The Christ-child lay on Mary's breast
His hair was like a star.
(O stern and cunning are the kings,
But here the true hearts are.)

The Christ-child lay on Mary's heart,
His hair was like a fire.
(O weary, weary is the world,
But here the world's desire.)

The Christ-child stood on Mary's knee,
His hair was like a crown,
And all the flowers looked up at Him,
And all the stars looked down

Friday, December 21, 2007

Concerns about Huckabee

Like many political conservatives - and, also, like more than a few political liberals -- I have been thinking that there is much to like about Gov. Huckabee.  (That said, he is not, and has never been, my preferred candidate.)  I liked it, that is, that -- in addition to having sound (i.e., my own) views on abortion-regulation, he seemed (for a while, anyway) not to endorse base anti-immigrant rhetoric; that, as Governor, he was willing to commute the sentences of, and pardon, convicted criminals; and that, for a while, he avoided Giuliani-esque over-the-top statements about how tough he is willing to be on detainees, etc.  (I have been bothered, though, by his cosy relationship with the teacher unions, among other things.)  I even gave him a little (very little) money.

This column, though, by Robert Novak, leaves me very troubled.  Now, to be clear, it is not (for me) a reason to worry about Gov. Huckabee's candidacy that, apparently, some Southern Baptist leaders are not endorsing him. What does bother me, though, is (what seems to be) Gov. Huckabee's close relationship with Steven Hotze, Rick Scarborough, and Vision America.

I've been pretty clear, I think, about my disdain for the tedious "the theocrats are coming!" thing that is so popular in some circles.  (See Ross Douthat's take-down of the genre here.)  But, as I see it, Hotze, Scarborough, and Vision America really do have troubling and misguided views about faith, law, and the political order.  We're not talking Fr. Neuhaus's critique of the naked public square here, or John Courtney Murray's We Hold These Truths.  These folks are hard-core.  And, they are, in many ways, wrong.

Now, I'm confident (should I be, though?) that Gov. Huckabee's own views are more thoughtful and sound than those of these so-called Christian Reconstructionists.  But, can anyone doubt that, were Huckabee to be the nominee, these people and their views (read this, for example) -- which would be, I'm confident, regarded as deeply creepy and troubling by most Americans -- would be at the center of the campaign?  (Indeed, it would be political malpractice for Huckabee's opponent, or opponents, not to exploit his connection with these people.)  Even those of us who have found things to like about Huckabee would, I hope, demand that he repudiate them, their views, and their aims.

I am, of course, pro-life and fairly conservative.  I agree entirely with those who insist that religious faith has a role to play in politics and policy.  I don't see "theocracy" looming behind efforts to, say, protect unborn children from partial-birth abortions.  But, I do worry about Vision America (not that they could actually achieve their aims, but that they will become associated in the public mind with *my* aims).

Also troubling to me - and, I hope, to other Catholics -- is the fact that Gov. Huckabee apparently has no difficulty appearing with, and preaching at the church of, Pastor John Hagee, a virulent and ignorant anti-Catholic polemecist who has, to put it mildly, not yet got the word about "Evangelicals and Catholics Together."

So:  tell me, MOJ readers who support Gov. Huckabee, if you think I'm overreacting here.  Should I not worry about Huckabee's relationship with the attendees at the event described in the Novak column?  About his relationship with Hagee?

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Thursday, December 20, 2007

The new First Things blog

Over at First Things, the "On the Square" blog has been up and running for awhile.  Now, it seems they want to get a more "bloggy".  And so, here's the new, real First Things blog.  Surf over and see who's Man of the Year for the year 1456.

More about the Nava hoax

As Michael notes, Francisco Nava faked, and lied about, being assaulted for his conservative views, thereby joining the depressingly-not-small rogues' gallery of hate-crime fakers.  This is sad, and bad.  That said, preening pieces like this one in The Nation are, in my view . . . not particularly helpful.

To be clear:  I'm not, at all, making a Duke-esque "it does not matter if the lacrosse players were railroaded because the charges, though false and destructive, brought to the surface important and often neglected issues of race, gender, class, and justice" argument.  (If only Duke's "Gang of 88" were as quick, or even as willing, to confess error as the "conservatives" at Princeton have been!)  There's no excuse or justification for what Nava did.  More specifically, it does not excuse or justify what Nava did that, at many of our most elite universities, The Nation's sarcasm and Nava's hoax notwitstanding, there is often a "double standard" that disadvantages "conservative" ideas, students, speakers, academic-job-seekers, and faculty.

It is also too bad that that hoax provided an occasion for The Nation writer's detour into cut-and-pasted conspiracy theorizing about Robby George, the James Madison Program, and "right-wing foundations and a shadowy web of front groups for the Catholic cult known as Opus Dei."  (The writer forgot the albino monks in Prof. George's basement!)  If one of the lessons of l'affair Nava is that the pitched-culture-war character of many on-campus (and off) debates is not particularly conducive to careful debate and enlightening conversation, this lesson seems entirely lost on the folks at The Nation.

Finally, it could be that the writer has some facts not quite right.  He writes:

George also congratulated himself for his own calmness in the crisis and sharp-wittedness in uncovering the fraud. "Within seventy-two hours," he said, "we were able to expose this as a hoax."

But of course, Nava's claims were never "exposed" by George or his conservative campus allies. Nava had reportedly confessed to his lying under police questioning. Only hours before George celebrated the "good sense" he and university administrators displayed, he had accused Princeton of upholding a liberal double standard. And while Princeton police investigated dubious details of the alleged assault, George broadcast his confidence in Nava's melodramatic account.

This post, over at First Things, presents a different account (scroll to the bottom).

Wednesday, December 19, 2007

More from Chris Eberle

Chris Eberle writes:

Just a quick note about Rob Vischer’s recent post.   I take it that Rob’s view  is that “the creation of the perception of imminent death” by way of “extreme physical suffering” is a sufficient condition of torture – waterboarding is torture because it does just that.  That doesn’t seem to be to be right.  After all, creating the perception (and reality) of imminent death by way of extreme physical suffering is what soldiers do to enemy combatants all the time, but killing, wounding and maiming enemy combatants isn’t torture.  Moreover, many American soldiers undergo waterboarding, during which the aim is to create the perception (without the reality) of imminent death by way of extreme physical suffering. But waterboarding is not torture in those cases, or, if it is, then it’s permissible torture.  Perhaps that’s why, as I was wandering through the hall here in Annapolis, it was hard to find someone who thinks waterboarding is torture.

Of course, that hardly settles the issue – we can’t rely on the expertise of military folks to determine whether we should engage in waterboarding if for no other reason than that they are divided on that matter.  For what it’s worth, I think that we ought not engage in that practice – that’s where my gut is – but it’s very difficult to specify what it is about that practice that’s so heinous.  Neither Rob’s post nor the editorial from the Armed Forces Journal helps remove that perplexity.

Readers might be interested, by the way, in this post of mine ("What Is 'Torture'?"), over at the Vox Nova blog, and also in the many interesting comments.

Eberle on waterboarding and torture

I could be wrong, of course -- and Chris Eberle can certainly speak for himself -- but . . .   With respect to Rob's recent post, "Waterboarding is (still) torture":  I did not take Chris Eberle to be suggesting otherwise.

As I see it, Rob's initial post quoted the Armed Forces Journal editors' statement that "[w]aterboarding inflicts on its victims the terror of imminent death. And as with all torture techniques, it is, therefore, an inherently flawed method for gaining reliable information. In short, it doesn’t work. That blunt truth means all U.S. leaders, present and future, should be clear on the issue[.]"

In response, Chris said two things:  First, he denied the suggestion that practices which "inflict[] on [their] victims the terror of imminent death" are "inherently flawed method[s] for gaining reliable information."  He wrote:

Surely, threatening some people with the terror of imminent death works sometimes and doesn’t work other times.

Second, Chris added:

The serious moral question, I think, is whether we should torture even if doing so is an effective means of protecting innocents.

Chris's statement strikes me as both correct and important.  That is, it seems correct to say that "terror of imminent death works sometimes and doesn't work other times."  And, it is important to be clear that the morality of a particular practice does not, and should not, depend on whether that practice "works."  So, Chris is insisting -- as we at MOJ do but the editors of the Armed Services Journal might not do -- that the argument against torture is not a merely consequentialist one.

Rob also writes:

Waterboarding, in my (admittedly limited) understanding, inflicts extreme physical suffering to the point that the subject expects death to result.  It is not simply providing information to the subject that they will be killed unless they cooperate.  Waterboarding violates the person's physical integrity, inflicts extreme physical suffering, and as a product of that physical suffering, creates the perception of imminent death.  I'm open to arguments as to why that's not torture.

I didn't take Chris to be suggesting that a practice which "violates the person's physical integrity, inflicts extreme physical suffering, and as a product of that physical suffering, creates the perception of imminent death" is not torture.  His point, it seems to me, was that, if such a practice is immoral, it is not because it does not work, but because of some other, non-consequentalist consideration (one that, I'm confident, Rob would endorse).

But again, maybe I'm mis-understanding Chris's point.

Chris Eberle on waterboarding and the Armed Forces Journal

Responding to Rob's recent post, Chris Eberle writes:

Rob Vischer notes that he has “zero expertise on national security issues,” but cites the editors of the Armed Forces Journal, who, he says, are credible and experienced, who assert that waterboarding is torture, and so concludes that waterboarding *is* torture.  I wonder though, on several counts.

First, I asked a Marine officer whose opinion I very much respect what he thinks of the Armed Forces Journal.  He didn’t know much about it, but when I, after checking the web site, informed him that the same folks who publish the Armed Forces Journal also publish the Army, Navy and Marine Corps Times, he was, to put it mildly, dismissive.  The latter three publications have no official or unofficial affiliation with the US military, and are, from his perspective, “the National Enquirer” of their respective services.  So a word of caution: just because some journal has is entitled “The Armed Forces Journal” doesn’t imply that its editors are “credible and experienced.”  Maybe they are, but there’s at least one very experienced and intelligent officer who uses its sister publications as “fish wrap.”

Second, the substance of the editorial is, at least, unpersuasive – to me.  In fact, it’s not clear that the editors even bothered to articulate an argument for their position – they just assert that waterboarding is both torture and ineffective.  Well, there is one argument: waterboarding inflicts on its victims the terror of imminent death and is “therefore” an inherently flawed method of gaining information.  This is, to say the least, not an impressive argument!  Surely, threatening some people with the terror of imminent death works sometimes and doesn’t work other times.  The serious moral question, I think, is whether we should torture even if doing so is an effective means of protecting innocents.

Third, I wonder what MOJ readers think about the case of Lt Col Allen West.  The short version: the American military learned about a local policeman who had information about a potential attack, apprehended the policeman, Col West shot a pistol past the prisoner’s head, and threatened to shoot the policeman if he refused to divulge details about the plot.  The claim is that this policeman complied and the attack was averted.  (Here’s a link to one article file:///C:/Documents%20and%20Settings/Administrator/Desktop/EBERLE%20DOCUMENTS/West%20would%20make%20'sacrifice'%20again%20-%20The%20Washington%20Times%20Nation-/West%20would%20make%20'sacrifice'%20again%20-%20The%20Washington%20Times%20Nat.htm)

Did Col West ‘torture’ the Iraqi policeman?  He certainly threatened him with “the terror of imminent death.”  The question is, of course, not whether Col West acted correctly: he thought that he had acted correctly, but illegally, and so was justly punished for fulfilling his moral responsibilities to his troops.  I tend to agree with Col West.  But that’s not the question in which I’m interested.  Rather, did he torture the policemen – perhaps by virtue of threatening imminent death?  Is threatening with imminent death, as waterboarding does, always torture?  Subsidiarily, should he have been prosecuted for torture?

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