Is potential regret constitutionally significant? Reflecting on the majority opinion in Gonzales v. Carhart, Andy Koppelman wonders why it is relevant that women might come to regret their abortions:
[W]hat is the major premise of this argument? That constitutional liberties can be restricted if it sometimes happens that someone regrets exercising the liberty in a given way? It's hard to imagine any liberty that no one ever regrets. Some people who criticize actions of the government later wish that they had kept their mouths shut. Some criminal suspects regret that they didn't confess everything when the police first interrogated them. Some of the slaves freed by the Thirteenth Amendment were old and infirm, and some of them probably regretted leaving the plantation.
It is hard to imagine the boundaries of this principle as Kennedy has stated it. He cannot possibly mean it. One can only hope that, at some point, contemplating what he has written, he regrets it.
MOJ friend and alum, John Breen, wrote the following:
"Thanks to Rick Garnett for posting Geoff Stone’s post regarding the Supreme Court’s decision in Gonzales v. Carhart.Yes, Professor Stone published a “post” on the University of Chicago Law School’s faculty blog.However, it would be incorrect to call what Stone has written an “argument” though it may bear some faint similarity to one.
"The structure of Professor Stone’s claim is as follows:The Gonzales majority consisted of five Catholic justices; the moral judgment that partial-birth abortion is wrong cannot be supported by secular beliefs; therefore the five Catholic justices relied upon their religious convictions in deciding the case.Of these three propositions, Professor Stone provides support only for the first, a modest accomplishment since the justices’ religious affiliations are a matter of public record.He never provides support for his claim that the five justices in the majority in fact relied upon their religious beliefs.Certainly they do not do so in any overt manner, invoking the Bible or the Catechism of the Catholic Church.Thus, Stone simply assumes this to be the case.In place of argument, Professor Stone offers us innuendo.Likewise, Stone does nothing to show that opposition to abortion cannot be grounded in thoroughly secular reasoning.This, we are to gather, is a self-evident truth.
"What is worse, Stone is extremely selective with respect to the inferences he urges his readers to make concerning the reasoning of the different justices.Let’s be blunt:It is a matter of historical record that the American Jewish Congress has long been a supporter of abortion rights.Indeed, it assumed this position well before Roe was decided.Why does Professor Stone not encourage his readers to infer that Justices Ginsburg and Breyer based their decision on religious premises?Why should we not surmise from their religious affiliation, and nothing more, that they have likewise determined a legal question on the basis if their personal religious faith?
"Reading Professor Stone’s post reminded me of a passage from John Noonan’s under-appreciated book, A Private Choice (1979).In it Noonan notes the habit of many in the media to identify “a person publicly opposed to abortion by his religion, if he happened to be Catholic” (p. 54) but to refrain from making this identification when the subject was some other moral issue such as opposition to the Vietnam War or care for the elderly.Sadly, says Noonan, “just as a racist press once identified every thief if possible as black, so the press identified every public opponent [of abortion] if possible as Catholic” (p. 55).I do not wish to accuse Professor Stone of stoking the still burning embers of anti-Catholicism in this country, but I am at pains to understand how Professor Stone’s commentary differs markedly from these journalistic practices of the past.In making what Stone terms “a painfully awkward observation” concerning the Catholic identity of the five justice majority, we are left to conclude . . . what?Again, if it is prove the religious basis of the majority’s decision, Stone still has much work to do.
"Rick Garnett is of course correct in his basic response to Stone, namely, that the moral value attached to all human life –whether in the early stages of development or in the twilight of existence— is not an inherently religious judgment.Put another way, a judgment that attaches little value to a particular instantiation of human life shares precisely the same “religious” character as a judgment which attaches enormous value to the same entity.Thus, Professor Stone seems not to fully comprehend the implications of his statement that the moral status of the fetus is a “rationally unresolvable question.”Neutrality with respect to the value accorded fetal life is not an option.Indeed, the Court in its abortion jurisprudence takes a definitive position with respect to this issue, a position which, if Professor Stone is to be believed, is not rational.Indeed, if the answer to the question is not resolvable on rational, secular grounds, then the Court’s answer must be “religious” in its own way.
"Professor Stone ends his post by quoting the Court’s admonition in Casey that the role of the Court is “to define the liberty of all, not to mandate our own moral code” and asserting that the five Catholic justices in Gonzales chose “not to follow this example.”Here his own normative commitment to the result in Roe and Casey and Stenberg blinds him to the irony of this admonition.He cannot see that the basis of the decision in Roe and each of its progeny was the moral principles of the individual justices who decided these cases, and not the Constitution itself.Proponents of the Court’s abortion jurisprudence have now had more than generation to put forth a convincing argument that the result in Roe was compelled by the text, structure and history of the Constitution, and they have failed – a point that the three justices in the plurality opinion in Casey as much admit.Thus, Stone cannot argue that Ginsburg and her fellow dissenters merely relied upon what Stone terms “settled precedent” since that precedent in turn is based on the personal moral beliefs of the justices who created it.
"Finally we might ask this question: Why are supporters of abortion rights like Professor Stone so infatuated with this point of view, this desire to label the pro-life position as religious and irrational?What explains their inability to see the pro-life position otherwise than through the lens of religious dogmatism, as anything other than an effort to oppress women and impose the tenets of a particular religious faith on an unwilling public?
"Let me simply suggest that what motivates this response is fear.The proponents of this position are fearful that an intellectually honest debate about abortion —a debate confined to secular premises— would not be to their advantage.That is, Professor Stone and many who share his point of view seek to avoid having such an argument by denying the rationality of those whom they oppose.It is of course much easier to win an argument when the other side is silenced, when the legitimacy of one position is denied ab initio.Sadly, when one side refuses to engage in a respectful and intellectually honest discussion of the topic, all that remains is a strategy of caricature and dismissal.
"That this strategy is a common feature of what passes for “debate” on abortion in this country is surely a sad commentary on the state of American legal and political discourse.What is especially disconcerting, however, is to see a chaired professor at the University of Chicago – a venerable institution known for its unapologetic devotion to intellectualism – engaged in what can only be described as a public display of anti-intellectualism.What is worse is to recognize that Professor Stone believes that he has actually made an argument."
I just recently got the bookThe History of the English-Speaking Peoples Since 1900, by English historian Andrew Roberts, which self-consciously updates Churchill's monumental work. It looks like an interesting read, advancing, according to one jacket blurb, "the faith of Winston Churchill that the English-speaking peoples [UK, US, Australia, New Zealand] are 'the last best hope of mankind.'" For this thesis to be convincing -- insofar as a nation state could ever be that kind of hope -- it would have to be asserted in quite a qualified, measured manner. So we'll see.
I flipped first to Roberts's discussion of the Versailles Treaty, where he attacks the "received wisdom" that the Treaty's undue harshness on Germany ended up bringing on the next world war. I'm no historian, so his attack could be right, but the following argument of his struck me as seriously fallacious: "Adolf Hitler had plans of conquest and dreams of scourging the Bolsheviks and Jews that would have led him far beyond the frontiers that any peacemakers could have possibly agreed for Germany at Versailles." Of course he did, but the question is whether Hitler would have been able to take power in a Germany that had not been subjected to Versailles: the received wisdom, obviously, claims that the treaty's harshness contributed to the chaos in Germany that led many people to turn to Hitler for salvation. You could question that claim factually (e.g. maybe the treaty itself didn't have such a harsh effect), but the quoted passage from Roberts seems simply to dodge the argument.
It's hard not to see a parallel in today's debates about how to deal with Bin Laden and "Islamo-fascists." Since their demands are entirely unacceptable, and since no compromise can be brooked with evil, does that mean -- as is sometimes argued -- that there are no prudential limits on what should be done to fight them? Only if you look at the violent radicals in isolation, and disregard the fight for the hearts and minds of millions of Muslims who might or might not be attracted to the radical wing -- who might either strengthen it or instead be helpful in our fight against it -- depending in part on how America acts. To say this, of course, is decidedy not to advocate "blaming America first" or hamstringing ourselves from action against terrorists. It is simply to say that we must consider the effects of our actions on both groups, "Islamo-fascists" and "Muslims in the middle." People can differ on how precisely to balance those two considerations. But when Roberts in the above-quoted passage about Versailles talks about only one -- the unmanageable Hitler, and not the larger group of Germans -- I wonder if he's driven by some of the perceived exigencies of today's fights?
(In defending the relevance of this post to Catholic legal theory, I'll plead that we've spent a fair amount of time on the blog talking about the theological/moral/prudential issues involved in "the war against terror" ...)
Tom
UPDATE: There's a debate at the The New Republic between Roberts and a critic over whether his book minimizes or apologizes for atrocities committed in the past by the British (e.g. the Amritsar massacre of Indians in 1919, the killing of Kenyans in the Mau-Mau uprisings in the 1950s, and the Boer-War concentration camps). Again, the strong subtext is whether "the English-speaking peoples" (today, mostly the Americans) can generally be trusted to keep their use of force within acceptable bounds. Sounds to me like the critic wins the debate over Roberts' passages, but I'll read the book.
This appeared recently in the Chronicle Review, and I thought it was well worth re-printing:
JEAN BETHKE ELSHTAIN
God Talk and American Political Life
American civic life is indecipherable if severed from its entanglement with American religion -- most important, Protestant Christianity of a Methodist variety. (This Methodist variety was various indeed, with dozens and dozens of spinoffs.) As Alexis de Tocqueville observed about the young nation in Democracy in America, the action of religion on politics, and politics on religion, was "something new" under the political sun, as the rich associational intermingling took place absent a struggle for ascendance. That reciprocal relationship continues in American civil society today. Everybody now recognizes the fact, but it presents difficulties for scholars. It is almost impossible to argue that one influences the other disproportionately.
Religion in its dominant American forms of Protestantism has paid a price for its cultural centrality, of course. One charge against the Protestant mainline is that in the past 40 years it has "followed" the culture and its tendency to value individualism and play down a sense of community. Rather than offering a bracing alternative to rapacious individualism, Protestantism has fallen in line. One important task of religion is to challenge the political world and what it makes most important, to raise questions when politics overreach. You cannot do that very effectively if you are simply absorbed within the forms of politics and lose a robust "separateness."
Here is one place where the rubber hits the road. The First Amendment of the Constitution's section on protecting the free exercise of religion has come increasingly to mean "free religious expression," something that refers to a subjective belief. What the framers had in mind may have been more robust -- not just freedom of individual conscience but a form of institutional autonomy, real libertas ecclesiae. It is very difficult for religion to serve as "salt and light to the world" (that, at least, is what Christians are called to do, which is of some cultural import since the United States remains overwhelmingly Christian) if religion has no independent, vigorous institutional site. Yet we remain suspicious -- or many do -- when "churches" act, especially if the church in question happens to be Roman Catholic. In that I see not only the continuing echoes of our historic anti-Catholicism but a real fear, even animus, against the notion of "church" or "institutional religion." We are happier with "spirituality," but, as one wag put it, "What does that mean? That I've watched many episodes of Touched by an Angel?"
Let's circle back to Tocqueville. He had in mind not only the subjective freedoms of believing citizens but also the mutual interaction of religious institutions and associations. That is what appears to have withered. And it is through religious institutions and communal bodies that the "politics" of religion comes through. It isn't a politics that dictates a particular policy outcome in any simple sense but that instead presents to a highly subjectivist culture an alternative understanding of persons and the common good. That may be the most important "political" contribution of all. If there are changes in the relationship of religion to American society, they very likely lie in accommodationism rather than continuing and sustained challenge.
Of course, America's elites don't mind if "religion," speaking institutionally, shares their enthusiasms. But as soon as "religion" trenches on their turf -- on the abortion issue, say, or the cloning and destruction of human embryos for research -- they voice cries of the illicit intrusion of religion into politics.
As to new directions for research: Here the issue of religion in civil society has certainly been joined. But there are fewer scholars than there should be reminding both religious and political forces how fractious the engagement can andI would insist -- ought to be. American society has all sorts of ways of working this out. But one party to the deep moral questions that vex us should not be forced to operate under a cloud of suspicion that it speaks from, and to, a "sectarian" perspective that is unacceptable in American life.
Jean Bethke Elshtain is a professor of social and political ethics at the University of Chicago.
Amy Welborn has this post up about the death of Michele Fu Tieshan, "Patriotic Archbishop of Beijing," who will, according to the news report, "receive a funeral fit for a 'head of state.' There will be no Vatican representative present, neither the religious ceremony nor the state burial." Also:
The capital’s faithful notice with some bitterness that the patriotic bishop’s body was “sequestered” by the PA – of which Fu was national president – in order to publicize his “contribution to the nation”, without a single reference to the Catholic faith. “He died as he lived – one woman notices – that is as Communist Party property”. The same official Party statement, exalts him as a “patriotic religious leader, social activist and great friend of the Chinese communist party”.
For more of my take on the "Patriotic Association," and religious freedom in China, go here.
Interesting piece by Asma Khalid, in the Christian Science Monitor, called "Why I am not a Moderate Muslim." A bit:
In the aftermath of September 11, much has been said about the need for "moderate Muslims." But to be a "moderate" Muslim also implies that Osama bin Laden and Co. must represent the pinnacle of orthodoxy; that a criterion of orthodox Islam somehow inherently entails violence; and, consequently, that if I espouse peace, I am not adhering to my full religious duties.
I refuse to live as a "moderate" Muslim if its side effect is an unintentional admission that suicide bombing is a religious obligation for the orthodox faithful. True orthodoxy is simply the attempt to adhere piously to a religion's tenets.
The public relations drive for "moderate Islam" is injurious to the entire international community. It may provisionally ease the pain when so-called Islamic extremists strike. But it really creates deeper wounds that will require thicker bandages because it indirectly labels the entire religion of Islam as violent.
In this piece, I draw upon Indian and other comparative legal experience to argue that the present U.S. system of territorial federalism resonates deeply with those systems of "personal law" that are commonly found around the world. Under a personal law system, a state enforces different laws for each of the state's different religious or ethnic communities - which is one reason such systems have been so heavily interrogated by U.N. and other international organisations for their human rights implications. Similarly, as well, U.S. First Amendment jurisprudence has frowned upon the carving out of religious-group exceptions to generally-applicable law. That being said, the U.S. Supreme Court has also recently given renewed emphasis to state sovereignty and other federal values. As this piece argues, what results from this worship of federalism is a truly American-style personal law system, where territorial communities have taken the place of other personal law systems' religious and ethnic communal constituencies. This being the case, I conclude by questioning recent innovations in American constitutional jurisprudence which devalue religious pluralism, while simultaneously elevating territorial communalism.
Here is a must-read essay by my friend in Notre Dame's history department, Brad Gregory. Brad is a very distinguished scholar, whom ND lured away from Stanford. And, in this piece, he explains why he moved. (It builds on things Brad wrote, in the context of l'affaire Vagina Monologues, about why a University's decision to actually worry about the content of what it sponsors does not render it an intellectual backwater.)
Now, I want to bracket the question whether Notre Dame actually has those characteristics that, in Brad's view, more than justify a move from Stanford. But, assume that it does:
Were it not for this difference -- and Notre Dame's potential to become a kind of institution never before seen in American higher education, namely a first-rank research university that is also genuinely Catholic -- I never would have left Stanford for it. What would have been the point, if Notre Dame's Catholicity were as vestigial and vaporous as that of so many other institutions that had lost their formerly robust religious character? Better simply to stay at a great secular university to begin with.
What drew me to Notre Dame was its Catholic identity. Numerous academics think that any university with a religious mission must be inhibiting academic freedom, marking itself as sectarian and advertising itself as intellectually narrow. Such a characterization justly applies to some religiously affiliated colleges and universities, which want to keep the wider world at bay. Not so Notre Dame. In fact, in my experience, there is greater academic freedom at Notre Dame than at leading secular universities, in ways that both derive from and reach beyond its Catholic mission.
"What would have been the point"? Exactly. Educational (and other) institutions that chafe at the suggestion that "Catholic" should describe reality, rather than origins, need to face (and to be made to face) the question: "What is the point?" (The question should also always be squarely in the view of those who make decisions about institutions like Notre Dame.)
Also: Non-Catholic universities, and those who believe that an authentically Catholic university is, in the end, an impossibility (because "Catholic" limits "university"), need to ask themselves, "where has Prof. Gregory gone wrong?", when he says:
It is liberating to be at a University with a wider scope for academic freedom because it lets religion be religion on its own terms.
Here is the schedule for the 7th Circuit Bar Association's Annual Meeting in Milwaukee, on May 6-8. I'm participating on a panel -- "Bloggers and the Courts" -- on May 7, along with Judge Sykes, the inimitable Howard Bashman, and some other widely read law-prof bloggers. (According to the program, I'm appearing in my "Prawfsblawg" capacity, and not my MOJ capacity; as the man said -- "that is something we shall have to remedy.")
My reading of the recent decision, along with the concurring and dissenting opinions, of Gonzales v. Carhart has been complemented by examining commentaries of the majority opinion by Members of Congress and the representatives of influential and formidable interest groups, especially those from the pro-abortion lobby. I have previously offered some thoughts on the media reaction by the New York Times [HERE].
One reaction that I have to the negative commentary of the majority opinion and the decision beyond that of the media is that the authors of these critiques generally share a different view of human nature and the res publicae from what our Founders had back in the latter part of the eighteenth century. Most of the Founders possessed and exercised a sensible understanding of the natural law, which inspires authentic human reasoning, a crucial element of the tradition that underpins Catholic Legal Theory. It was this sensible understanding of the natural law and the development of human, i.e., positive, law that led them to conclude that there exist truths which are self-evident.
However, it seems that many in our country—and, for that matter the world—have replaced the self-evident truth about human life, as corroborated by embryonic medical science, with the erroneous belief that the target of any abortion, including Partial Birth Abortion, is somethingother than a human being. But, this target is not merely a clump of cells, it is not just tissue that can be easily disposed of by the exercise of the “Constitutional liberty”— in reality an exaggerated autonomy—of some. The target or object of any abortion is, first and last, a human being—yes, a person—in his or her nascent stages. Human life, one of those self-evident truths, is comprised of many stages. But those stages, and how they are manifested in each human life—each person—are not materially altered by the differences found among human beings. I think the members of the majority in Gonzales v. Carhart are beginning to get this point and articulating it consistent with the underlying principles of the Republic and its Constitution, although some members of the Court, like Justices Scalia and Thomas, have been presenting this point for some time. However, the dissenters on the Court and the critics of the majority opinion appear to deny this self-evident truth about human nature and human life and have replaced it with an exaggerated understanding of human autonomy—which they call the exercise of liberty and a woman’s entitlement —that would permit, from their perspective, the “right” to destroy another human being by ignoring the reality of the latter.
The harsh criticisms of the majority opinion will like continue and fuel heated political debates in the coming election season. But, as Americans all, we must not forget the principles upon which our Republic was founded and which the majority have apparently rediscovered. In this context, Pope John Paul II offered some important counsel in Centesimus Annus when he stated that “a democracy without values easily turns into open or thinly disguised totalitarianism.” [N. 46] He reiterated this point a few years later in Evangelium Vitae wherein he warned that when democracy contradicts its own principles (such as self-evident truths), it “effectively moves toward a form of totalitarianism.” [N. 20] I think the majority in Gonzales v. Carhart have come to acknowledge not only the truth of which the Pope spoke, regardless of their religious affiliation, but also understand, accept, and protect the principles upon which our Republic was founded.RJA sj
