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, October 16, 2007

Pro-Life, but against S-Chip expansion?

By Rick Garnett

A group called "Catholics United" criticizes "ten members of Congress whose opposition to the State Children’s Health Insurance Program (SCHIP) have compromised their pro-life voting records."  Here is the full release. “Building a true culture of life requires public policies that promote the welfare of the most vulnerable,” said Chris Korzen, executive director of Catholics United. “At the heart of the Christian faith is a deep and abiding concern for the need of others. Pro-life Christians who serve in Congress should honor this commitment by supporting health care for poor children.”

Here is Ryan Anderson's response, "A Hijacking in Progress."  Anderson writes:

I'm no health-care expert, but it seems to me that that there are legitimate arguments on both sides of the debate over this bill. Those who think a single-payer, federally funded health insurance program is ultimately the way to fix American health care will likely support the expansion of S-chip as a step in that direction. Those who think that this expansion will reduce competition in the health care market and create too many additional entitlements that the federal government can't fund (as millions of middle-class families who previously paid for private insurance for their kids opt in for this "free" one) have opposed it. This is what some of the congressmen that Catholics United is targeting have said--they support reauthorizing S-chip as it currently is, but the Democrats' plan for its expansion is a mistake. . . .

The pro-life jabs are particularly distasteful and destructive. They are nothing more than gross moral equivocation and the intentional hijacking of language. If every poverty-fighting bill under the sun becomes a "pro-life" bill, then the words lose all meaning. According to its website, Catholics United is a pro-life group dedicated to protecting the 1.3 million Americans killed every year by abortion. Yet it is leading the charge to eviscerate the clear meaning that the words "pro-life" have had in the American context for the past generation: opposition to legalized abortion coupled with support for mothers facing crisis pregnancies.

But no one is against health care for poor children. In this debate there is no pro-poor and anti-poor.  Everyone is pro-poor.  There simply are different ways of being pro-poor: one way emphasizes federal programs and nationalized care, and one favors private initiatives and community empowerment. Extending federally-subsidized state-run health insurance to children in families making eighty-thousand dollars a year is one way among many to meet the needs of children.  Drawing largely from Catholic Social Doctrine, the principle of subsidiarity, the autonomy of the family, and John Paul II's moral critique of the welfare state, I happen to think it's a mistaken way. But I won't call you a bad Catholic or anti-life if you disagree.

Holy Hoops

By Rick Garnett

It's almost time, friends.  No, I'm not talking about Fall Break, the feast of St. Margaret of Scotland, or (shudder) the first presidential primaries.  I'm talking about college basketball.  A good time, then, for this review, "Holy Hoops", by Jason Byassee, of Will Blythe's (misguided, of course) To Hate Like This Is to Be Happy Forever: A Thoroughly Obsessive, Intermittently Uplifting, and Occasionally Unbiased Account of the Duke-North Carolina Basketball Rivalry (HarperCollins, 2006).  Here's the opening of the review:

The air has turned. The heat is gone, cool is here, cold is coming. This can only mean one thing: college basketball is on its way.

In advance of this quasi-liturgical season (at least for those reared in North Carolina, Kentucky, Indiana, and other enlightened places) let us ponder matters metaphysical. I have evidence for the existence of a merciful God. Proof, almost: Duke and North Carolina have never met in a men's basketball Final Four. How could heaven compare to the joy of winning such an apocalyptic contest, or hell to losing it? If bonfires and naked revelry erupt when the two meet in regular season games, what manner of destruction and mayhem would accompany a title game between the two?

Now, what's the connection to Catholic legal theory?  Hmmm.  Well, Coach K. is a Polish Catholic from Chicago.  And, of course, all things pertaining to the true, the good, and the beautiful ought to be within our purview here at Mirror of Justice.  Finally, there is some God-talk in the review.

Thursday, October 11, 2007

Robby George on Garry Wills

By Rick Garnett

Responding to the Garry Wills argument, about which several of us have posted, Prof. George sends in this:

Wills looks at sonographic images of the child in the womb and sees . . .  something that is admittedly "human life," but clearly not a person[.]  The human fetus is like a human hair, he suggests:  "human" and "living" but not a person.

[What, however,] about the indisputable scientific fact that unlike a human hair a human fetus is a whole living member of the species homo sapiens?  He or she (yes, sex is already determined) is both genetically and functionally distinct from his or her mother (and father); the fetus is not a mere part of a human being (like the hair on a person's head or his hand or liver).  As a matter of biological fact, he or she is nothing less than a human being at a certain stage of development.  Unless denied or deprived of adequate nutrition and a suitable environment (things that any of us need at any developmental stage) he or she will by directing his or her own integral organic functioning develop from the fetal into and through the infant, child, and adolescent stages of a human life and into adulthood (unless killed by violence, accident, or disease).

When Wills looks at those sonographic images, he sees movement but not agency.  From this he rushes to draw the inference:  "It's not a person!"  But somebody else got to that inference first.  That somebody is Peter Singer, who (unlike Wills) is prepared to mention its implications.  If agency is what makes a human being or other creature a person, then human infants aren't persons any more than human fetuses are.  They may legitimately be killed because they are unwanted, or because the parents would like to dismantle them to procure transplantable vital organs.  And, of course, severely retarded individuals are not persons any more than fetuses or infants are; nor are people suffering from dementias.  These "human non-persons" are all fair game for the euthanasiasts and those who are prepared to treat them as subpersonal collections of harvestable organs.

Wednesday, October 10, 2007

Moreland on Taylor and Duffy

By Rick Garnett

MOJ-friend and law-prof Michael Moreland sends in this, responding to my "new books" post:

. . .  I was struck in the Atlantic by Benjamin Schwarz's (a tough critic) evident appreciation for Duffy's work. I bought Marking the Hours earlier this year and have been dipping into it since--it's not the sort of book one need read straight through but can be approached instead almost as devotional literature. Along with The Stripping of the Altars, Voices of Morebath, and The Faith of Our Fathers--his collection of more popular essays from the Tablet and similar places--Duffy has recovered aspects of English Catholic culture that had been almost entirely forgotten and worked a revolution in English Reformation historiography. ( Voices of Morebath, which recounts daily life in a sixteenth century village as seen through the records of the local parish, is fascinating but sometimes a little tedious--a lot of diary entries on sheep shearing, wool production, and the like.) I think of Peter Ackroyd as doing much the same, broadly speaking and in a more popular vein, in his sprawling biographies of More, Shakespeare, Blake, and Dickens.

As for Taylor, the new book has been sitting on my shelf for a few weeks, and, apart from a few hours flipping through it, will probably have to be summer or holiday reading. Like Sources of the Self, it's brilliant, encyclopedic, and rambles among philosophy, theology, politics, art, and literature. For our purposes as lawyers and scholars in the modern university, the book provides an extensive discussion of Taylor's category of "social imaginaries" ("that common understanding which makes possible common practices, and a widely shared sense of legitimacy," p. 172), which was the subject of a shorter book of his a few years ago. There's much grist for the Catholic legal theory mill in taking social imaginaries and other aspects of Taylor's most recent work and applying them to the law. For example, Taylor traces the evolution from a society of "mediated access" to "direct-access," "from a hierarchical order of personalized links to an impersonal egalitarian one; from a vertical world of mediated-access to horizontal direct-access societies." (p. 209). For the modern citizen, Taylor argues, "[m]y fundamental way of belonging to the state is not dependent on, nor mediated by any of these other belongings. I stand, alongside all my fellow citizens, in direct relationship to the state which is the object of our common allegiance." It seems to me there's much there for the doctrine of church autonomy, the proper characterization of religious belief (both individual and associational) in the law, and the ongoing importance of the principle of subsidiarity in Catholic social doctrine.

Quick thought on "red" and "blue" families

By Rick Garnett

With respect to the piece, to which Tom linked, on "red" and "blue" families, a few quick thoughts:

First, their "red" v. "blue" taxonomy seems (shockingly) simplistic.  If they mean "families in blue states" and "families in red states", then they are (obviously) overlooking the diversity (in politics, as well as family situation) in red and blue states alike.  (There are "new system" families aplenty in downtown Atlanta and Phoenix, and there are old-school, traditional families aplenty in Minnesota and Pennsylvania.)  Next, we are also overlooking -- and, I appreciate that this is a delicate point, but it is an important one -- the extent to which a third situation (which, we might think, is at *least* as prevalent in "blue states" as in "red states") of familes consisting of poor, unmarried women and children with non-involved (perhaps multiple) fathers. 

The claim that "blue familes" are "prosper[ing]", then, has to ignore these third-situation families in blue states, and also rests -- I assume -- on contestible notions of what counts as "prospering."  Similarly, the claim that "red families" are struggling, even on their own terms, is certainly true in many cases, but I have a hard time believing it is any more true than the claim that "blue families are prospering."

Now, all that said, it *should* be a matter of great concern -- to policymakers and theologians alike -- that, in those states where professed religiosity is high, and professed adherence to "traditional" morality is high, we nonetheless see a great deal of divorce, etc.  But the "red" and "blue" thing seems like a self-congratulatory gimmick.

Tuesday, October 9, 2007

Thoughts on "Respect Life Sunday"

By Rick Garnett

On behalf of the Social Justice Commission of my parish, I wrote a few paragraphs for the cover of our weekly bulletin this past Sunday, "Respect Life Sunday":

For the last 35 years, the Catholic bishops in the United States have used the first Sunday in October to remind us that we are called to embrace and proclaim the Gospel of Life.

Luke’s Gospel includes the beautiful story of Mary’s visit to her cousin Elizabeth, who was pregnant with her son, John.  At the very sound of Mary’s greeting, Elizabeth tells her, “the infant in my womb leaped for joy” (Luke 1:44).  On this Respect Life Sunday, we are invited to reflect on Elizabeth’s awe in the presence of the unborn Christ and challenged to consider the many ways in which our society fails to follow her example.

At the heart of Catholic social teaching is the unshakeable conviction every human person is sacred, loved by God, and made in His image.  When the dignity of human life – and, in particular, of the most vulnerable among us – is threatened or violated, true justice and peace are not possible.  As Pope John Paul II wrote, in The Gospel of Life, “[o]nly respect for life can be the foundation and guarantee of the most precious and essential goods of society, such as democracy and peace.”  Indeed, this same truth is recognized in the Preamble to the United Nations Convention on the Rights of the Child:  The “recognition of the inherent dignity and equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.”

As we pray for a just peace in the world and in our community, we should consider Mother Theresa’s observation that “the greatest destroyer of peace today is abortion.”  After all, she said, “[a]ny country that accepts abortion, is not teaching its people to love, but to use any violence to get what it wants.”  Similarly, Pope Benedict has noted that “alongside the victims of armed conflicts, terrorism and the different forms of violence, there are the silent deaths caused by hunger, abortion, experimentation on human embryos and euthanasia.  Abortion and embryonic experimentation constitute a direct denial of that attitude of acceptance of others which is indispensable for establishing lasting relationships of peace.”

          The Gospel of Life is not always easy to proclaim, and it is often hard to hear.  To be unconditionally and comprehensively pro-life, to think of human persons in terms of their God-given dignity and not merely their supposed “value” to society is sometimes unpopular and uncomfortable.  Still, our Christian vocation as People of Life makes demands on us, not only in our personal lives but also in the public arena of politics and policy.  And, it poses to us the question:  Will we, like Elizabeth, regard the gift and mystery of human life – in the womb, in the wheelchair, in the sick-bed, in the prison cell – with welcoming joy?

New books of interest

By Rick Garnett

While flying back today from lovely Harrisburg, PA (the whole town smells like chocolate!), flipping through The Atlantic, I came across two books that looked really interesting.  First, there's Eamon Duffy's new work, "Marking the Hours:  English People and Their Prayers, 1240-1570."  Duffy apparently extracts great riches from the marginalia in the prayer books of pre-suppression England.  In fact, he works with the actual copy of the prayer book that St. Thomas More used, and wrote in, while awaiting his death.  I thought Duffy's "Stripping of the Altars" was one of the best non-fiction books I've ever read, so I'm looking forward to "Marking the Hours."

Next up is Charles Taylor's "A Secular Age."  'Nuff said.

If any MOJ readers have already jumped into these books, I'd welcome impressions and reviews.

Still more on St. Thomas and Abp. Tutu

By Rick Garnett

For starters, thanks to Tom for his thoughtful response to my questions about the St. Thomas faculty statement.  His answer to my question, "how offensive is too offensive?" -- i.e., "I think at least a major criterion is a judgment whether the speaker is engaged in a good-faith expression of a moral or intellectual position or simply a malicious attack on a person or group" -- strikes me as quite sensible.

Thanks also to Rob for his thoughts.  It sounds reasonable to me to say that no "speaker engaged in the search for truth should be categorically excluded from a Catholic university based on the offensiveness of his speech[,]" with (perhaps) the caveat that the "offensiveness" of the speech is likely, in some cases, to constitute good evidence that the speaker is not, in fact, "engaged in the search for truth."  (Do you disagree, Rob?).  But, that said, how do we know -- as Rob puts it -- that Holocaust deniers are not engaged in the search for truth?  Is this just another way of saying that what Holocaust deniers say is not only offensive, but wrong (or, so wrong as to be offensive)?  How do we identify those offensive speakers who are seeking the truth, and distinguish them from those who are not?

And, I agree entirely with Lisa that "we need to think about how we, as universities, can constructively foster dialogue and debate, rather than simply providing platforms for assertions of positions on divisive issues."

Finally, it was clear, I believe, in my post that I was not asserting or concluding that, at the end of the day, Archbishop Tutu should not have been included in the program at St. Thomas.  What I wanted to do was to raise some questions about the translatability (not a good word, I know) of standard, "marketplace of ideas" / New York Times v. Sullivan / "speech always trumps offense-harm" arguments into the Catholic university context.  I did not, with all respect to Teresa, contend, or even "suggest", that "no one who is in disagreement with any aspect of the Truth taught by the Catholic Church can be invited to speak, even on issues in which they are in complete agreement with the Church and from which their fame derives, at least without some denunciation of the speaker's incidental false views."  Here, just to be clear, is what I wrote:

Also -- and I intend this as a serious, good-faith question:  Given Tutu's regrettable failure to understand well, and speak clearly about, the immorality of abortion, do those who signed the statement think that a Catholic university that welcomed Tutu to speak about peace-making should -- given the celebrity, and near-saint, status he enjoys, particularly with students -- do something (anything?) to identify his unfortunate blind-spot on abortion?  To challenge him?  Should a Catholic university that welcomes (and celebrates, and honors) Tutu have any duty to use his presence as a kind of teaching moment?  (As, for example, Pres. Bollinger did at Columbia.)  To be clear:  I'm not sure what I think about this -- again, I'm all for the rough-and-tumble of free speech -- but I'd appreciate others' thoughts.

I agree with Teresa that the position quoted above (i.e., "no one who is in . . . ") should not be embraced.

Monday, October 8, 2007

Greenspan and Rand

By Rick Garnett

I'm not, and have never been, an Ayn Rand fan.  So, I really loved this bit, from Andrew Ferguson's review of Alan Greenspan's new book ("The Age of Turbulence") in The Weekly Standard:

Her creepy philosophy of objectivism, placing the self at the center of the moral universe, was being enthusastically embraced, as it still is, by tens of thousands of pimply teenage boys in the dreamy moments between fits of social insecurity and furious bouts of masturbat***.

Heh.  (If you are an Ayn Rand fan, please don't write me to complain.  Same goes for Rush fans.  "The Trees" is pretentious and silly.)

The St. Thomas statement on Bishop Tutu

By Rick Garnett

I appreciate the chance to read, and think about, the letter of the St. Thomas faculty regarding the Bishop Tutu situation.  To be clear, I'm a big fan of free speech.  But, I wonder, is this really true?:

To reject a distinguished speaker based on worries that his words may cause hurt or offense to some is entirely at odds with the search for truth that should characterize a Catholic university.  Speech taking positions on controversial subjects will often be offensive or hurtful to some people.  Nevertheless, a Catholic university should be willing to open itself to such speech – and criticisms of that speech – in order to learn the truth.

I would not have thought that "the search for truth that should characterize a Catholic university" requires such a university to give a platform to all speakers, no matter how offensive their views or statements.  Somewhere, I assume, there is a line.  Ex Corde, I would have thought, is not a mere baptism of John Stuart Mill. 

Yes, the worry that statements-in-pursuit-of-truth might offend or hurt should not be enough -- at any university -- to trigger the exclusion of an otherwise worthy speaker.  But, I assume that my friends who signed this letter do believe that the "search for truth / marketplace-of-ideas" argument is not always trumps, and so it seems that, underlying the letter, is the implicit claim that Tutu's "comments on the Israeli-Palestinian comment" are not, objectively, offensive (and offensively false) enough to warrant his exclusion.  Am I right about this?  If someone believed that Tutu's suggestion of an instructive comparison between the Holocaust and Israel's efforts -- which may, of course, be criticized -- to defend herself from terrorists calling for her to be "wiped off the map" is horribly misguided, what guidance would my friends at St. Thomas offer about how that person should decide, as a general matter, how offensive is too offensive?

Also -- and I intend this as a serious, good-faith question:  Given Tutu's regrettable failure to understand well, and speak clearly about, the immorality of abortion, do those who signed the statement think that a Catholic university that welcomed Tutu to speak about peace-making should -- given the celebrity, and near-saint, status he enjoys, particularly with students -- do something (anything?) to identify his unfortunate blind-spot on abortion?  To challenge him?  Should a Catholic university that welcomes (and celebrates, and honors) Tutu have any duty to use his presence as a kind of teaching moment?  (As, for example, Pres. Bollinger did at Columbia.)  To be clear:  I'm not sure what I think about this -- again, I'm all for the rough-and-tumble of free speech -- but I'd appreciate others' thoughts.

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