I am happy to agree with Tom that "[g]iven that many programs have some but not total success, making the question one of weighing costs and benefits, the bar ought not to be set too high when the program bears on the question whether women will perceive themselves able to take care of their children, born and unborn." And, I agree that, assuming there are no concerns about counter-productivity, "pro-life citizens and voters should weigh the benefits of potentially reducing abortions as quite high, justifying substantial social expenditures." And, with respect to WIC, my point was certainly not to suggest that the qualified criticisms one might reasonably direct at the program warranted opposing the PWSA, but only to note, as a general matter, that pro-life citizens -- Democrats and Republicans alike -- should not abdicate the responsibility of trying to craft policies that actually work well, and efficiently.
Tuesday, September 26, 2006
Response to Tom re PWSA
Monday, September 25, 2006
Casey and Santorum talk religion
Worth a read. I did not know that Casey, like your humble blogger, was a Jesuit Volunteer.
Sunday, September 24, 2006
Religion and Division
Eugene Volokh has some posts up about Judge Karlton's concurrence in the Ninth Circuit's recent Faith Center Church case. In that case, a panel majority, per Judge Paez, concluded that a library may exclude "religious worship" from a policy that opens library rooms broadly to "meetings, programs, or activities of educational, cultural, or community interest." In the concurring opinion, Judge Karlton writes:
Those, like myself, who advocate adherence to the strictures of the Establishment Clause, do so not out of hostility towards religion. Rather, we are motivated by recognition of the passions that deeply-held religious views engender, and the serious threat of marrying those passions to government power. . . .
As Volokh notes, though, it is not clear that letting a church meet in a public library, which is open to other community groups, "marr[ies] . . . passions to government power." Judge Karlton continues:
That threat is not merely historic. One need only look about the world to see that danger in play. The scenario is the same whether it is in Northern Ireland where Catholics and Protestants kill each other in an effort to establish governmental power, in Israel, where Jews and Muslims do the same, in Iraq, where Shi’a and Sunni are engaged in similar slaughter, or in Sudan where Muslims murder Christians. Nor is that the only danger.
As Volokh comments, though, "it's not clear that evenhanded treatment of all religious groups alongside secular groups in access to government benefits has much to do with conditions that lead Catholics and Protestants to kill each other." More Judge Karlton:
Where government plays a role in the religious life of a pluralist society, there is the danger that government will favor the majority religion and seek to control or prohibit the rites of minority religions. Such favor can only lead to alienation and social unrest. . . .
The wall of separation between church and state that Thomas Jefferson thought the First Amendment raised, in no way prejudices the practice of anyone’s religion. Instead, it serves the salutary purpose of insulating civil society from the excesses of the zealous. . . .
As I have argued, in this article, it does not seem that the assertedly "salutary purpose" of "insulating civil society from the excesses of the zealous" is one that (a) is really all that salutary, in a free civil society or (b) should be promoted through the interpretation and application by judges of the Religion Clauses. Instead, I believe:
[We should be] mindful of John Courtney Murray's warning that we should cherish only modest expectations with regard to the solution of the problem of religious pluralism and civic unity, and also of his observations that pluralism (is) the native condition of American society and the unity toward which Americans have aspired is a unity of a limited order. Those who crafted our Constitution believed that both authentic freedom and effective government could be secured through checks and balances, rather than standardization, and by harnessing, rather than homogenizing, the messiness of democracy. It is both misguided and quixotic, then, to employ the First Amendment to smooth out the bumps and divisions that are an unavoidable part of the political life of a diverse and free people.
Creeping Death
No, this is not a post about Metallica. Anne Althouse passes on this story, which might be of interest: Apparently, the "right to die" is not just for the terminally ill anymore:
BRITONS suffering from depression could soon be legally helped to die in Switzerland if a test case in the country’s Supreme Court is successful next month.
Ludwig Minelli, the founder of Dignitas, the Zurich-based organisation that has helped 54 Britons to die, revealed yesterday that his group was seeking to overturn the Swiss law that allows them to assist only people with a terminal illness.
In his first visit to the country since setting up Dignitas, the lawyer blamed religion for stigmatising suicide, attacking this “stupid ecclesiastical superstition” and said that he believed assisted suicide should be open to everyone.
Saturday, September 23, 2006
Judge Schiltz
A warm congratulations to our fellow MOJ-er, Lisa Schiltz, on the investiture of her husband, Patrick Schiltz, as a judge of the United States District Court. Here's a nice release about the ceremony. As the St. Thomas contingent can attest, Judge Schiltz is a first-rate, lawyer, scholar, colleague, and friend. He's done wonderful things for Catholic legal education, and I'm sure he will provide great service on the bench.
The Pregnant Women Support Act
Thanks to Tom for his posts regarding the Pregnant Women Support Act, which enjoys the support of Democrats for Life, and a number of religious and pro-life organizations. (And Martin Sheen!). It does not, apparently, enjoy the support of any pro-choice groups.
Tom asks, "can any pro-life person (and anyone, pro-choice or pro-life, who wants to reduce abortions) fail to support this bill?" Earlier, he wrote:
I cannot imagine why any pro-life member of Congress, Republican or Democrat, should not wholeheartedly support this bill. The only reason to oppose it from a conservative side would be on the basis of a knee-jerk hostility to government spending and regulation, overriding—in a telling and disturbing way—a commitment to preventing the deaths of some unborn children.
From what I've been able to learn about the details of the Act, I agree with Tom that pro-life conservatives should support it. (I would not reduce conservative concerns about excessive and wasteful spending -- concerns that certainly have little purchase in today's Republican Congress -- to "knee-jerk hostility," but that's another matter.)
That said, would Tom agree that it would not necessarily be "telling and disturbing" for a conservative to oppose a particular measure that was presented by its supporters as part of an effort to reduce abortions? I do not think it should necessarily be seen as allowing "knee-jerk hostility" to spending to trump concern for unborn children to raise questions about the effectiveness of programs like, say, WIC. (One of the things the proposed Act would do is increase WIC funding.) But again, this Act looks like a commendable effort. Why aren't the pro-choice groups supporting it? Does anyone know?
Thursday, September 21, 2006
Yearning for the Infinite
This year's annual fall conference (Nov. 30-Dec. 2) of the Notre Dame Center for Ethics and Culture has as its theme "Modernity: Yearning for the Infinite." For more info, go here. The Center's annual conference is always a fun and fruitful time, and this one looks to be no exception. Here's some of the promotional blurb:
What clearly stands behind the modern era’s demand for freedom is the promise: You will be like God….The implicit goal of all modern freedom is, in the end, to be like a god, dependent of nothing and nobody, with one’s freedom not restricted by anyone else’s….Being completely free, without the competition of any other freedom, without any “from” or “for”—behind that stands, not an image of God, but the image of an idol.” — Pope Benedict XVI, Truth and Tolerance.
Our aim with our seventh annual fall conference is to bring together a large number of respected scholars representing all the main academic fields, from Catholic, non-Catholic, and secular institutions, to provide spirited discussion of the underlying causes of the intellectual epoch we have come to call modernity; of the relationship between the main theses of modernity and the Magisterium of the Church in the last century; and the impact of modernity upon work in philosophy, theology, law, literature, the arts, as well as other fields of intellectual inquiry and endeavor.
Confirmed speakers of particular interest to Catholic law profs include Russ Hittinger and Steve Smith.
"Taking Accommodation Seriously"
I have posted on SSRN a piece, co-written with my student, Joshua Dunlap, on the Supreme Court's recent O Centro case, which involved the interpretation and application of the Religious Freedom Restoration Act. It's called "Taking Accommodation Seriously: Religious Freedom and the O Centro Case." Here is the abstract:
The big stories from the Supreme Court's 2005-06 Term were about military commissions and enemy combatants, political redistricting and campaign contributions, and the nomination and confirmation – the first in more than a decade – of two new Justices. Largely overlooked in the crush of Court-related coverage was the Term's lone church-state decision, Gonzalez v. O Centro Espirita Beneficente Uniao do Vegetal, involving the ritualized, but illegal, use by a small religious community from Brazil of a hallucinogenic tea called "hoasca."
Strictly speaking, O Centro was not a Religion Clauses case at all. It involved the interpretation and application of a particular statute, the federal Religious Freedom Restoration Act ("RFRA"). And, the Justices agreed with the courts below that the Act requires the government to demonstrate, in a particularized, more-than-conclusory way, that its refusal to exempt from the scope of the drug laws the otherwise-illegal religious use of hoasca is justified by a compelling state interest.
It would be a mistake, though, move past the decision too quickly, and for at least two reasons. First, it is no small thing that the new Roberts Court – unanimously – has made it clear that the tighter constraints imposed by Congress on the national government really do bind. The Smith case teaches clearly that the political process is the main arena, and politically accountable actors are the primary players, when it comes to accommodating the special needs of religious believers. O Centro is entirely consistent with this teaching. However, it also underscores the point that when that process, and those actors, produce such an accommodation, courts and officials are to take it seriously. Second, it appears that the Justices have, with one voice, rejected the notion that such accommodations amount to an unconstitutional privileging, endorsement, or establishment of religion. Again, the Constitution for the most part permits – for better or worse – governments to regulate in ways that, in effect, burden religious exercise. At the same time, and no less certainly, it allows – and even invites – governments to lift or ease the burdens on religion that even neutral official actions often impose. O Centro affirms that, notwithstanding our constitutional commitment to religious freedom through limited government and the separation of the institutions of religion and government, it is and remains in the best of our traditions to "single out" lived religious faith as deserving accommodation.
Comments welcome!
Leiter on blogs
Brian Leiter has this essay, "Why Blogs Are Bad for Legal Scholarship," at the Yale Law Journal's "Pocket Part." He writes, among other things:
Blogs differ from other Internet services because they combine three characteristics: they are unmediated (like so much of what is on the Internet), public (like SSRN), and normative (like much e-mail about scholarly topics). It is this conjunction that makes blogs special, and especially dangerous—at least for legal scholarship. (Philosophy, my other academic field, is less vulnerable on this score, for reasons I’ll return to in a moment.) Any second-rate scholar can have an opinion, however ignorant or confused, about the merits of someone’s work, and express that opinion in an e-mail to a colleague elsewhere. Now imagine that same ignorant or confused opinion broadcast to thousands: that is what blogs make possible. Indeed, blogs do more than that: they make possible the repeated and systematic broadcast of non-expert opinions, opinions that can then be picked up and amplified by other non-expert blogs. The result is often what Timur Kuran and Cass Sunstein would call an “availability cascade[.]" . . .
Unlike philosophy blogs, law blogs are susceptible to availability cascades, and for two reasons. One reason is that the legal academy often lacks expert mediators. To be sure, there are plenty of experts who read law blogs and who can tell right away when the half-baked tripe of Generic Law Blog’s good friend is being passed off as a “significant” contribution. The problem is that reputational effects in the legal academy are mediated by two institutions whose primary arbiters are not, themselves, experts or even quasi-experts, and so are especially vulnerable to availability cascades. First, one of the major venues for legal scholarship remains the student-edited law reviews, and the student editors of these journals are only irregularly and by happenstance in a position to offer expert resistance to an availability cascade initiated by the law blogs. Second, the legal academy, because of the enormous public interest in law, is more susceptible to the journalistic reception of legal ideas, and journalists are, with rare exceptions, not experts. Even those journalists who regularly cover law tend to be especially susceptible to what apparently more expert law professors with blogs have to say. With scholarly discourse in law hostage, at least partly, to these two non-expert mediating devices, the potential for availability cascades to lead to the dissemination of weak scholarship is high.
Of course, there is another culprit in this story, namely, the blogs themselves. If the leading law blogs were written only by the leading scholars, the availability cascades that occur would be more likely to raise, rather than lower, the level of scholarly discussion. But that is, unsurprisingly, not the case. The most visible and highly trafficked law-related blogs have one, and only one, thing in common: they were started relatively early in the “blog boom,” that is, in 2001 or 2002. (Many, but not all, also tilt noticeably to the right.) Latecomers, like the Becker-Posner Blog or the University of Chicago Law Faculty Blog, which generally have much higher intellectual content, get nothing like the traffic of the early arrivals. As the economists like to say, the “barriers to entry” to the Internet in general, and the “blogosphere” in particular, are low, and not just in monetary terms. One need not be a good scholar, or an intellectual heavyweight, to have a blog, and if one got into the blog game early enough, one can thrive, especially with an audience of non-expert consumers. . . .
People who run blogs tend to respond badly, indeed harshly, to the suggestion that blogs are not as important as their proprietors think they are. Be that as it may, my sense is that blogs have been bad for legal scholarship, leading to increased visibility for mediocre scholars and half-baked ideas and to a dumbing down of standards and judgments.
Two mechanisms still exist for counteracting these developments. First, more first-rate scholars may enter the blogosphere, and use their pre-Internet gravitas to shift the terms of discussion. Second, the shift to peer-refereed publications in the legal academy—most of the best work in law and economics and law and philosophy, for example, now appears in faculty-edited journals—will ameliorate the significance of availability cascades on non-expert mediators like students and journalists.
I suppose I disagree -- I'd have to, wouldn't I? -- with Professor Leiter about the extent to which law-prof-bloggers are more ignorant or overrated than other academic bloggers. Still, the piece provides reasons for caution and care.
I would have thought the real reason blogs are bad for scholarship is because they are so delightfully time-sucking.
More Benedict reading
Some more posts and pieces, which might be of interest, on the Pope and "the speech" . . .
Jacob Levy, at TNR's Open University, writes, in "Those Who Take Their Theology Seriously":
. . . In the post-Reformation west we've come to the view that religious argument ought to be conducted with words, not swords. But that is very different from supposing that the words in which religious argument is conducted ought to be nice touchy-feely ones--much less from supposing that religious argument ought not to take place at all. We ought to expect governments--the American government and the Israeli government, but also the Turkish government and the Pakistani government--to stay out of religious argument proper. But we ought to expect a religious leader to be willing (pace Frost on liberals) to take his or her own side in that argument.
Fr. James Schall writes, in a piece called "The Regensburg Lecture: Thinking Rightly About God and Man":
. . . [T]he pope does not only have Islam in mind. He has universities in view, as well as modern thought and other "cultures." The scope of this lecture is breathtaking. But essentially, it is first a theology of history -- it was no accident that the early apostles went to Macedonia, to the Greeks with their minds. The first thing that the early Christian mind had to encounter was mind itself, best represented by the Greeks, perhaps only by them at the time. What was at stake was this very issue about the Word -- the Logos -- about whether it was a kind of amorphous flux that could be this or that, good or bad, according to whatever it decided. Or was there a fundamental distinction in things, a realism that would eventually justify science and all else that man has discovered? Science, after all, has certain theological presuppositions that make it possible to be practiced.
This address is likewise a brief history of modern European philosophy -- that philosophy with roots in the two Testaments and in Greek and Roman thought. But Benedict recognizes that the modern mind is now more relativistic and skeptical. The modern mind doubts that there is reason, and doubts that we can both know and believe. It doubts that faith and reason belong to the same sphere, yet that is what Europe is. And Europe is not just another "culture," but is the culture in which the confrontation of reason and revelation took place and in which the relations were hammered out.
It is not without profound interest that the pope chose precisely a university in which to deliver this lecture. It is not an encyclical. It is not a "doctrinal" statement. It is not a homily. It is a lecture to a university faculty and to its students -- and not just to those in Regensburg sitting before him. In this sense it strikes at the very heart of the intellectual acaedia, to the intellectual sloth, of our time, to the refusal to think about the important thing with the tools that we have been given. What we know as universities in the modern world originated in the Church, in a space in which the whole could be talked about. Benedict knows that all disorders in politics and morals originate in the minds of the learned. It is there that we must begin to address our public issues, including that of Islam, but also questions of life, of morality, and of what we are about.
Here is Sandro Magister ("Islam's Unreasonable War Against Pope Benedict XVI"):
. . . [T]his is not a pope who submits himself to such censorship or self-censorship, which he sees as being inopportune and dangerous indeed when it concerns the pillars of his preaching. His goal on his trip to Germany was to illuminate before modern man – whether Christian, agnostic, or of another faith; from Europe, Africa, or Asia – that simple and supreme truth that is the other side of the truth to which he dedicated the encyclical “Deus Caritas Est.” God is love, but he is also reason, he is the “Logos.” And so when reason separates itself from God, it closes in upon itself. And likewise, faith in an “irrational” God, an absolute, unbridled will, can become the seed of violence. Every religion, culture, and civilization is exposed to this twofold error – not only Islam, but also Christianity, toward which the pope directed almost the entirety of his preaching.
And, Reul Marc Gerecht writes ("The Pope's Divisions"):
Let us be frank: There is absolutely nothing in the pope's speech that isn't appropriate or pertinent to a civilized discussion of revealed religions and ethics. Even if one is not a believer in any revealed faith, or has some memory of the conflict, daily cruelty and forced conversion meted out by representatives of Rome's bishops, or has some skepticism about the church's commitment to defending the liberal ideas of the Enlightenment, one can be thankful that the pope sees Christianity as a vehicle of peace and tries to explain why he thinks this is so.
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