No, don't worry Mark, this is not a post about neoliberal economics. Check out Michael Novak's on-line essay about . . . Notre Dame football.
Friday, September 8, 2006
Novak on the great issue of the day
More on Rauch, abortion, and "extreme" claims
First, I want to thank Eduardo, Steve, Michael S. and others for this conversation. Conversations like this -- i.e., about abortion, slavery, faithful citizenship, law, prudence, etc. -- are difficult, and can easily be or become unedifying. One of the things we -- all of us -- have tried to do, for several years now, here at MOJ, is to model -- for our students, colleagues, fellow Catholics, and fellow citizens -- what a conversation between and among people with shared basic commitments who disagree about non-trivial things can and should look like. I hope it is clear, both to my fellow bloggers and to MOJ readers, that strong, and even strongly worded, disagreements are consistent with friendship and respect.
Now, Eduardo writes that "the comparison of abortion to slavery seems to me to be extreme in its implications and, consequently, to open those who espouse it to Rauch's criticism that they do not seem willing to follow their own principles to their logical conclusions, just as does the comparison of abortion to murder." It still seems to me, though, that the Rauch criticism is misplaced. As I wrote earlier:
I do not see why those who believe -- as I do, and as Ponnuru does, and as Eduardo does -- that abortion generally involves wrongful homicide, and that our Nation's tolerance (let alone constitutionalization and celebration) of private violence against unborn children is shameful, are therefore required, for consistency's sake, to believe that women who have abortions, or doctors who perform them, should be punished in the same way and with the same severity as are persons who "murder" adults. Nor do I see why those who believe that abortion generally involves wrongful homicide are therefore required, for consistency's sake, to "fire-bomb[] . . . abortion clinics" or take to the streets.
As for comparisons between abortion and slavery, that the asserted similarities between the constitutionalization of a legal right to abortion and the constitutionalization of a legal right to own slaves might weigh against -- though perhaps not necessarily "rule out" -- the "possibility that the legality of abortion might be tolerable on prudential grounds" does not, in my view, make the comparison "extreme." I take it that we all agree that slavery is an assault on human dignity, and that a legal regime that tolerates (let alone constitutionally celebrates) it, is -- to the extent that it tolerates it -- unjust. Abortion is an assault on human dignity and, to the extent our legal regime insulates almost entirely this lethal private violence from regulation, let alone prohibition, that legal regime is unjust. Making or accepting this comparison, though, does not -- it seems to me -- require one to rise up in armed resistance to that legal regime.
On a related matter, responding to this post of mine, Steve S. wrote:
If I read [him] correctly, Rick is saying that the state-of-mind is different because the perpetrators do not recognize the humanity of the victim. I am wondering whether and how the criminal law ordinarily would take this into account. I would think that at most it would be a mitigating defense, if at all. I am wondering whether Rick is trading on the premise that a fetus is not a human being in the same sense as an adult or baby, and, if so, what that difference is. In other words, I am having trouble determining why first degree murder would not be appropriate (other than for prudential reasons) if the fetus were considered to be a human being in the same sense as a baby or an adult. Of course, one would not have to think that a fetus was the same as an adult or a baby to believe that abortion is a moral tragedy.
I could be wrong, but I do not think my suggestion -- i.e., that the law might, without exposing itself to Rauch-ian charges of hypocrisy, treat abortion and "murder" differently because the mens rea of the actor is likely to be different in the two situations -- trades on the premise that the victim of an abortion is not, in fact, a human being. (The statement that a human fetus is a human being does not, I think, require "resort to Vatican authority."). The suggestion does presume, though, that the law might reasonably, and justly, take into account the fact (I agree with Steve that it is fact) that most of those who perform or procures an abortion, like the rest of us (including, I admit, me), do not or cannot really see or think about an unborn child in precisely the same way we think about an infant or an adult. Perhaps this inability is related to or results from the fact that our constitutional law has, in a sense, "taught" us all that abortion is a basic right. I do not want to say -- that is, I don't think -- that those who have internalized this teaching, to some extent, are culpable for having done so. Maybe this is one reason why I can understand why we do not regard a woman who has an abortion the way we regard someone kills his 5-year old son. (Returning to slavery, maybe we do not regard, say, George Washington as a monster -- far from it -- even though he owned slaves, is because we recognized that he internalized the false moral messages that the law and culture were transmitting.)
Thursday, September 7, 2006
Schiavo and autonomy
My colleague, Carter Snead, has posted a new paper on SSRN that might be of interest. It's called "The (Surprising) Truth about Schiavo: A Defeat for the Cause of Autonomy." Here is the abstract:
A survey of the commentary following the conclusion of the Theresa Marie Schiavo matter leaves one with the impression that the case was a victory for the cause of autonomy and the right of self-determination in the end-of-life context. In this essay, I seek to challenge this thesis and demonstrate that, contrary to popular understanding, it is the defenders of autonomy and self-determination who should be most troubled by what transpired in the Schiavo case. In support of this claim, I will first set forth (in cursory fashion) the underlying aim of the defenders of autonomy in this context. Then, I will provide a brief sketch of how the law - both as enacted and interpreted - might ideally serve to promote and defend the goods of autonomy and self-determination. I will thus assess the process and outcome of the Schiavo case by carefully examining the positive law governing the case, as well as the specific evidence relied on by the Florida courts to assess Ms. Schiavo's actual wishes (the touchstone of autonomy). Moreover, I will contrast the manner in which the Florida courts evaluated this evidence with the seemingly consistent and uniform approach taken by courts from other jurisdictions. I will additionally explore the significance of the Florida courts' decision to focus the majority of their resources and time on inquiries not oriented towards Ms. Schiavo's actual wishes, but rather on matters relating to paternalistic considerations, such as her present and future quality of life. In light of the foregoing analysis, I conclude that the Schiavo matter cannot rightly be understood as a victory for self-governance at the end of life. To the contrary, it is instead a cautionary tale of what can happen when the legal preconditions for the exercise of autonomy are absent or ignored.
The paper appears, by the way, as part of a symposium in Constitutional Commentary, along with several other helpful essays.
Wednesday, September 6, 2006
The new Army Field Manual
According to this news account, "[a] new Army manual bans torture and degrading treatment of prisoners, for the first time specifically mentioning forced nakedness, hooding and other procedures that have become infamous during the five-year-old war on terror." It continues:
It also explicitly bans beating prisoners, sexually humiliating them, threatening them with dogs, depriving them of food or water, performing mock executions, shocking them with electricity, burning them, causing other pain and a technique called “water boarding” that simulates drowning, said Lt. Gen. John Kimmons, Army Deputy Chief of Staff for Intelligence. . . .
The Pentagon also on Wednesday released a new policy directive on detention operations that says the handling of prisoners must — at a minimum — abide by the standards of the Geneva Conventions and lays out the responsibilities of senior civilian and military officials who oversee detention operations.
The Manual applies (apparently) to all of the branches of the armed services, but not to the C.I.A.
UPDATE: According to this Jurist report:
The new field manual and accompanying policy directives will apply to all detainees and interrogators in military facilities, as well as to CIA prisoners held at DOD facilities. CIA interrogators working from foreign facilities are not bound by the field manual, but they are barred from treating prisoners inhumanely under the Detainee Treatment Act of 2005 [JURIST document].
On a lighter note . . .
Here's a heartwarming, pro-life measure that will enjoy the approval of all of us. The brainchild of some college students in California, the "Wash for Life" is a nationwide car-wash that will raise money for crisis pregnancy centers. Here's how they describe the project:
We are a group of college students from Thomas Aquinas College in Southern California, who are giving our summer to make the Wash for Life happen. We believe that our generation can help our country in powerful ways. America was not built by people sitting back and letting the government fix all our problems. Instead, it was built by people who took action and tried make a better community in which to live. We think that an important way to oppose abortion is by creating communities that love and care for women and children. The Wash for Life will help accomplish this by raising money for pregnancy care centers, by raising awareness about pregnancy care centers, and most importantly by proving that our generation cares about human life and is willing to support women who have unplanned pregnancies.
So, go here, find your town, and wash your car on September 16.
Abortion and murder -- still more
With all due respect to Eduardo, I do not think that I am (or Ramesh Ponnuru is) trying to "have cake and eat it too." After quoting from my recent post and Ponnuru's recent piece, Eduardo writes,
I simply can't find a way to reconcile these perfectly reasonable statements with attempts to rule out as unreasonable certain positions on how best to deal with the problem of abortion that do not involve its legal prohibition at all.
First, my "perfectly reasonable statement[]" regarding the possibility that abortion -- although a grave moral wrong -- need not be treated in law precisely like "murder" is premised on it being the case that the Constitution has been repaired, and that democratic decision-making about abortion is once again permitted. When it comes to decisions about politics, voting, elections, and so on (to which Eduardo turns later in his post), it seems clear to me that one political party has, as its unshakeable priority, not the reduction of poverty, or the elimination of the death penalty, or peace in the world, but the preservation of those precedents that preclude even compromise regulations of abortion. So, as to the question whether it is "unreasonable" to "deal with the problem of abortion that do not involve its legal prohibition at all," I guess I think it is more appropriate -- given the truth about what abortion is -- to say "because abortion is the wrongful taking of a human life, it is important that -- even if it is punished differently than murder is punished -- the law identify it as such, call it wrong, and communicate our moral disapproval, through punishment, of it" than to say "we should -- indeed, under the Constitution, this is all we may do -- limit our efforts to stop abortions to measures aimed at creating conditions in which fewer abortions take place, and not pursue -- because, after all, the Constitution would not permit -- measures that reflect our judgment that abortion is immoral." Ponnuru's openness to compromise and pluralism assumes a background recognition in law that the unborn child is a human being, whose life it is wrong to take, and who ought, in justice, to enjoy protection, of some kind, from private violence.
Eduardo criticizes those who thought or said that "faithful Catholics cannot prioritize issues like the poverty, the death penalty, or the Iraq war over the abortion issue or vote for a presidential candidate who opposes the legal prohibition of abortion." I have always made clear my recognition that many faithful Catholics did prioritize issues in this way. (And, I hope Eduardo would agree, many faithful Catholics elected to prioritize abortion, and changing the jurisprudential regime that insulates abortion from democracy, over slight shifts in tax rates or the slightly different approach to Iraq that Sen. Kerry advocated in 2004.) I think what concerned some of us in 2004 was not simply that Sen. Kerry "oppos[ed] the legal prohibition of abortion" (but was clear about his moral opposition to abortion, and his desire to change people's minds about abortion, etc.), but that he "ran on" abortion and mischaracterized the nature of his critics' opposition to abortion, and that he and his Administration would have opposed even the regulation of partial-birth abortion, would have nominated Justices who would likely shore up the Stenberg decision, would have supported public funding for abortions, here and abroad, and so on.
Eduardo and I agree that, in most cases, "it is perfectly reasonable for Catholics to vote on the basis of issues on which more immediate progress is likely to result from a change in leadership." In my view, though, in 2004, it did not seem to be the case that a vote for Sen. Kerry would have resulted in "more immediate progress" on issues like, say, the death penalty or poverty, than has, in fact, resulted on issues like abortion from the election of Pres. Bush. As for the "slow road" charge, it seems to me that -- for all the complaints one might have, and should have, about the Administration's policies and Congress's (in)actions -- Pres. Bush is supporting and signing a good bit of pro-life legislation, and taking many pro-life steps on its own.
Courthouse architecture and Catholic legal theory
The Wall Stree Journal reports here that "[t]he federal agency that builds courthouses, border stations and other federal buildings is set to name a new chief architect, a move that could usher in a return to a more traditional type of architecture in the government's $10 billion construction program." The new chief architect is said to be Thomas Gordon Smith, a professor in Notre Dame's School of Architecture and a colleague of MOJ-friend Philip Bess.
Here's a quote from the story:
Others are worried federal architecture will lose its cutting-edge focus. Henry Smith-Miller, of Smith-Miller + Hawkinson, a New York firm, which designed a border station under construction in Champlain, N.Y., said he finds Mr. Smith's appointment "deeply troubling." He called Mr. Smith's traditional views "anti-progressive." It "picks up the imperial nature of Roman architecture, which was in service to the empire rather than service to democracy," says Mr. Smith-Miller.
Ah, yes -- "cutting-edge" and Modern architecture are so democratic . . . . The common man just loves this stuff. Here, by the way, is a post from Concurring Opinions with lots of pictures of new courthouses. And, here is a post from Concurring Opinions with lots of pictures of old courthouses. Advantage: Old.
Ponnuru responds to Rauch, et al.
Here is a response, by Ramesh Ponnuru, to some of the critiques of his book, "The Party of Death." (See these posts.) With respect to the charge that Ponnuru fails to see or embrace the implications of his pro-life views for the criminalization and punishment of abortion, Ponnuru writes:
It is true that I don’t lay out a detailed version of an ideal legal code concerning abortion. I had three important reasons for this “omission.” The first is that legislatures and voting publics are not yet in a position to be enacting ideal legal codes, and the case for allowing them to do so — which can include a case for the general reasonableness of the anti-abortion position — has to be made before it makes much sense to proceed to the next steps.
The second, related one is that my view of politics is not utopian. A slow process of persuasion, of asymptotic approaches to justice, is not a compromise; it is the very best that we can hope for. I have no illusions, and indulge none in the book, about the likelihood that a democratic resolution of the abortion debate would involve the triumph of my views on, say, the permissibility of aborting fetuses because of their disabilities. If we reach a point where unborn children are generally protected, I may write a book attempting more persuasion. But it would be a very different book.
My third reason is that there is considerable room for prudential judgment in the drawing up of laws. In one state, penalties might have to be tougher to deter a crime. I don’t have an ideal legal code in mind for prohibiting homicide in general, and I think that homicide laws may rightly vary according to the circumstances of time and jurisdiction. That doesn’t nullify my view that all places ought to prohibit homicide.
Yet I say enough to refute the charge that Rauch makes. I don’t sidestep the issues he addresses. See page 262, where I offer a reason for considering abortion “less culpable than, say, the murder of a business rival out of greed,” and for thinking it “just to impose less severe punishments.” I also explicitly say that if a legal regime of delicensure and fines for abortionists “deterred abortion and communicated the state’s and the public’s hostility to abortion. . . there would, in my view, be no need to go further” (p. 246).
In other words, I outlined the principles that ought to govern these laws in as much detail as the matter allows. I explained the sense in which abortion is analogous to other kinds of homicide (its deliberate ending of a peaceable human being’s life) and the sense in which it is not (the subjective moral intent likely to be behind the act). To put it a different way: While I cannot assent to the common pro-choice argument that we should allow the killing of unborn human beings since our society includes people who take many different good-faith moral views about the issue, I can see this pluralism as a legitimate reason for lenity in enforcing the prohibition.
Thoughts?
Wages, compensation, and our standard of living
Michael links, through Brian Leiter's blog and Daily Kos, to a "depressing map showing income drop under Bush." Here is a New York Times story on the same issue.
A quick thought: Clearly, Governor Jennifer Granholm -- a Democrat -- of Michigan, where the "income drop" is most pronounced, has to go! Go De Vos! Beat Granholm!
A more serious question: What, exactly, does the map mean?? No doubt, and this is particularly true for those of us -- that is, for all of us -- who don't really understand the ins and outs of labor economics, the news that wages are dropping should cause us to be concerned, sit up, and try to figure out what is going on. After all, "under Bush," the economy has grown, notwithstanding the bursting of the Clinton-era tech-bubble, the September 11 attacks, and wars in Afghanistan and Iraq. If it were the case that, despite this growth (which was not inevitable, was it?), Americans in the middle-, working, and lower classes were worse off, it would indeed be upsetting, and "depressing".
This map does not show, though, that Americans' standard of living is declining. It isn't. This Bureau of Labor Statistics report, "100 Years of U.S. Consumer Spending," might be of interest here. See also this recent Washington Post op-ed on why statistics like those in the map o which Michael links provide an incomplete picture of poverty and well-being.
Nor does the map accurate depict developments regarding Americans' real, total compensation (including benefits, insurance, pension contributions, etc.) According to this BLS chart, real hourly compensation in the non-farm sector has increased consistently since the 2001 recession. See also this post, by our fellow MOJ-er Steve Bainbridge, on whether statistics like those depicted on the map ignore the realities of the "ownership society."
Clearly, a map showing declining median wages in the face of growth and productivity increases is politically useful in September of an election year. And, we might conclude that, even the full picture of the economy (i.e., one that factors in real compensation and the considerations outlined in the Post op-ed) is troubling, perhaps because of the disparity between those at the top and the bottom. (See these old MOJ posts on income inequality.) We might think that even real, total compensation is too low, and failing to keep pace with American workers' increased productivity. And so on. But, if it turns out to be the case that, while median wages are not growing, real compensation and consumer spending are, is this something that is "depressing"? Morally objectionable?
Tuesday, September 5, 2006
Stuntz on suffering
Over at the New Republic, law prof. William Stuntz has some moving reflections about the "lessons" of suffering.
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