Earlier this week, I made the trip to New York City for the Institute on Religion and Public Life's annual Erasmus Lecture, which was delivered this year by MOJ-friend Prof. Robert George. The lecture -- presented to a standing-room-only, overflow crowd -- was called "On the Purposes of Law and Government: First Principles and Contemporary Challenges."
The lecture will be published, I'm told, later in First Things. In the meantime, though . . . Here are the opening few paragraphs:
The obligations and justifying purposes of law and government are to protect public health, safety, and morals, and to advance the general welfare -- including, preeminently, protecting people's fundamental rights and basic liberties.
Stop right there. One can hear already the Libertarian's objection: "Hold on! Isn't there a train-wreck of a clash coming between the purpose of protecting 'public . . . morals' and 'protecting . . . basic liberties'"?
At first blush, this classic formulation . . . of the purposes and powers of government seems to accord public authority vast and sweeping powers. Yet, in truth, the general welfare (or common good) requires that government be limited. Although government's responsibility is primary in respect of defending the nation from attack and subversions, protecting people from physical assaults and various other forms of depredation, and maintaining public order, its role is otherwise subsidiary: to support the work of the families, religious communities, and other institutions of civil society that shoulder the primary burden of forming upright and decent citizens, caring for those in need, encouraging people to meet their responsibilities to one another, and discouraging them from harming themselves or others.
Governmental respect for individual freedom and the autonomy of nongovernmental spheres of authority is, then, a requirement of political morality.
To say this (i.e., what was just said) is not to go over entirely (or even very much) to the libertarian view:
The strict libertarian position . . . goes much too far in depriving government of even its subsidiary role. It underestimates the importance of maintaining a reasonably healthy moral ecology, especially for the rearing of children, and it fails to appreciate the legitimate, albeit once again limited, role of law and government in maintaining such an ecology.
So, in just these few paragraphs, we see flagged at least two points that, I think, will need to be at the heart of any "Catholic legal theory": First, a just government (i.e., one that is appropriatedly directed to the common good, properly understood) is a constitutionally limited (though not a libertarian) government. Second, the "common good" consists, among other things, of a "moral ecology" conducive to human flourishing, including child rearing, and even an appropriately limited government must attend to the health of this moral ecology.
Thanks to Rick for posting about the Utah school-choice referendum next Tuesday. I spoke last week at a very interesting conference, sponsored by the International Center for Law and Religion Studies at Brigham Young University, about the legal and policy aspects of the Utah program, which if it survives the referendum would be the nation's first universal voucher program -- i.e. aimed statewide rather than at failing public-school districts. Although this feature makes the program less focused on the neediest families, it remains oriented toward the neediest, with the voucher amount graduated from $3,000 down to $500 as the family's income rises. Ideally I would prefer a program focused even more on the poor, but this proposal still would do a lot for them and for the causes of religious and educational freedom. The conference featured a great set of exchanges among political scientists on the empirical evidence concerning school choice's effect on educational performance (positive on a number of indicators although no effect on some), parental satisfaction (unquestionably positive), and civic involvement (likely to be good given the overall good record of private schools on such factors).
Opponents of the program argued among other things that the $3,000 maximum would not nearly cover the tuition at many private schools, including several of the major Catholic schools (there are relatively few Catholic schools in Utah). But the issue is always marginal effect, especially given the Church's proven willingness to subsidize the education of needy children. And a friend who I saw on the visit, who teaches at one of the Catholic schools with a tuition around $7,000, noted that a number of modest-income kids already attend that school largely on scholarship aid and that more could be accepted if the state kicked in $3,000 per kid.
In my own presentation, I argued that although a universal school-choice program might be less compelling than one aimed at failing schools as a policy matter -- although I think both are still justified -- it actually should be even less subject to Establishment Clause challenge. The Supreme Court's theory in approving vouchers in Zelman v. Simmons-Harris (2002) was that if benefits are available to families on neutral terms, their use at a religious school is the family's own free choice, as long as there are "genuine secular alternatives." In Zelman there was some dispute about the existence of genuine alternatives, given the horrible performance of the regular Cleveland public schools -- although the Court (rightly, I've argued) found more than sufficient alternatives in charter and magnet schools and public-school tutoring programs along with secular private schools. Thus even in Zelman it was ultiamtely unpersuasive to claim that parents were pushed into religious schools (ones they might otherwise oppose) by the combination of vouchers and a failing public school system, since there were reforms in the public schools. But any such claim of steering into religious schools is even weaker in the large majority of applications of a universal school-choice program, not limited to failing public-school districts -- since in most applications the regular public schools will be adequate and will unquestionably constitute genuine alternatives.
Tom B.
Wednesday, October 31, 2007
. . . go vote on Tuesday for school choice (and social justice, and religious freedom, and common sense, . . . ). If you live near Utah, move there, enjoy the best skiing in the world, and vote for school choice, one of the relatively few issues about which "there can be no debate."
MOJ readers in the New York area will be interested in a program entitiled: Immigration Policy and Catholic Social Teaching: Can We Work it Out?, to be held on Tuesday, November 13, at The Church of St. Ignatius Loyola. The program is being co-sponsored by the Church of St. Ignatius Loyola and the Woodstock Theological Center at Georgetown University, and will explore the question of "[h]ow do we link our Catholic Faith with its venerable tradition of social teachings to the challenges that the immigration debate in our country poses for us." The co-hosts for the program are Gerald R. Blasczcak, S.J., Pastor of St. Ignatius Loyola and Gasper F. Lo Biondo, S.J., Director of the Woodstock Theological Center, and the panelists are Donald Kerwin, Director of Catholic Legal Immigrant Network, Inc. of the USCCB and Carmen Maquilon, Program Director at Catholic Charities Immigrant Services, Diocese of Rockville Center. The program, which begins at 7:30 p.m. will be held in Wallace Hall at the Church of St. Ignatius Loyola, 980 Park Avenue (between East 83 and 84 Street), New York, New York.
In response to my post re-raising Eduardo's questions on the Church's teachings on the legality of abortion and certain abortion-practices, MOJ friend John Breen wrote to me about two recent articles of his that will soon be available on SSRN: John Paul II, the Structure of Sin and the Limits of Law (forthcoming in the St. Louis University Law Journal) and Modesty and Moralism: Justice, Prudence and Abotion - A Reply to Skeel and Stuntz (forthcoming in the Harvard Journal of Law and Publis Policy). He writes:
"In the latter half of the first piece, I address the historical record regarding the incidence of abortion prior to the state reform efforts in the late 1960s and early 1970s and Roe. Without settling on a definitive number, the available empirical evidence effectively refutes the claims of those who maintain that legalization had no effect on the frequency of the procedure. Indeed, Planned Parenthood's own numbers show that both the abortion ratio (the number of abortions per 100 known pregnancies in a given year) and the abortion rate (the number of women per 1000 between 15-44 years of age having an abortion in a given year) steadily climbed in the years following Roe, and that the actual number of abortions per year likewise steadily increased following Roe, surpassing even the exaggerated estimates of annual abortions prior to Roe advanced by abortion advocates.
"In the second piece I restate some of this critique. Beyond this, however, I also argue against those (including many Catholic commentators) opposed to any use of criminal sanctions in the regulation of abortion. Those who argue for a "culture first" approach also frequently advocate for the use of law in its non-coercive dimension, for a greater allocation of resources directed toward women with unexpected and unwanted pregnancies. Although I support such measures because solidarity demands that we support such women and their children (both born and unborn) I also show that it is unlikely that greater financial resources will have little effect on the incidence of abortion. A comparison of abortion rates and ratios in other developed countries (such as Sweden, Canada, England, and France) that have far more elaborate social service networks, strongly suggests that such measures will have only a marginal effect. Instead, I argue for a multi-faceted approach in which culture and law (including both the criminal law and law in its non-coercive dimensions) are employed in support of unborn human life and pregnant women and mothers.
"As for Eduardo' hypothetical, if true - if law has no effect on the frequency of the practice - it would, I dare say, be the first instance of that in the history of jurisprudence. Indeed, even the much maligned legal apparatus known as Prohibition was (as modern scholarship conrfirms) was successful in that it significantsly reduced the amount of alcohol consumed by Americans by upwards of 40 percent. of couse this raises a host of prudential questions: Would a reduced incidence of abortion be worthwhile even though absolute compliance with the law would not be achieved? Accordingly, I take up the subject of prudence and its relationship to justice at length in the second piece."
Tuesday, October 30, 2007
Theodore Dalrymple, an atheist himself, has a great review of the recent flood of angry-about-religion books that have been discussed here on MoJ and elsewhere. An excerpt:
Lying not far beneath the surface of all the neo-atheist books is the kind of historiography that many of us adopted in our hormone-disturbed adolescence, furious at the discovery that our parents sometimes told lies and violated their own precepts and rules. It can be summed up in Christopher Hitchens’s drumbeat in God Is Not Great: “Religion spoils everything.”
What? The Saint Matthew Passion? The Cathedral of Chartres? The emblematic religious person in these books seems to be a Glasgow Airport bomber—a type unrepresentative of Muslims, let alone communicants of the poor old Church of England. It is surely not news, except to someone so ignorant that he probably wouldn’t be interested in these books in the first place, that religious conflict has often been murderous and that religious people have committed hideous atrocities. But so have secularists and atheists, and though they have had less time to prove their mettle in this area, they have proved it amply. If religious belief is not synonymous with good behavior, neither is absence of belief, to put it mildly.
In fact, one can write the history of anything as a chronicle of crime and folly. Science and technology spoil everything: without trains and IG Farben, no Auschwitz; without transistor radios and mass-produced machetes, no Rwandan genocide. First you decide what you hate, and then you gather evidence for its hatefulness. Since man is a fallen creature (I use the term metaphorically rather than in its religious sense), there is always much to find.
The thinness of the new atheism is evident in its approach to our civilization, which until recently was religious to its core. To regret religion is, in fact, to regret our civilization and its monuments, its achievements, and its legacy. And in my own view, the absence of religious faith, provided that such faith is not murderously intolerant, can have a deleterious effect upon human character and personality. If you empty the world of purpose, make it one of brute fact alone, you empty it (for many people, at any rate) of reasons for gratitude, and a sense of gratitude is necessary for both happiness and decency. For what can soon, and all too easily, replace gratitude is a sense of entitlement. Without gratitude, it is hard to appreciate, or be satisfied with, what you have: and life will become an existential shopping spree that no product satisfies.
