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.

Thursday, August 10, 2006

Cardinal Martino, Saddam Hussein, and "moral seriousness"

The Institute for Peace and Justice, at the University of San Diego (a Catholic university, with an excellent law school), is hosting Renato Raffaele Cardinal Martino later this month, to talk about "the global impact of the Church through its social teachings, especially in the pursuit of peace and justice."  USD law professors Gail Heriot and Mike Rappaport, of the "Right Coast" blog, have posted some thoughts, critical of Cardinal Martino's statements in late 2003 to the effect that he felt "pity" and "compassion" for Saddam Hussein, when watching video of Hussein after his arrest.  Professor Heriot writes:

At the time, it struck me as an ill-considered outburst.  It's fine, even good, for all human beings to feel a visceral sympathy when they see a once-powerful dictator reduced to the level of Saddam Hussein that day.  I certainly felt it.  But for a Vatican official to make his public statement focus on that visceral reaction shows a lack of moral seriousness.  The arrest of man responsible for the murder and torture of thousands is not an ideal occasion to get weepy-eyed over the sight of the once-mighty-turned-pathetic.  Above all else, it's an occasion to thank God that he has been brought to justice (and that those who carried out the arrest were not hurt).

Professor Rappaport adds:

I fear that Gail is being too polite . . ..  To express pity for Saddam Hussein, except as an afterthought, is to ignore the importance of justice.  Whatever one thinks of the need for the Iraqi War, the capturing of Saddam Hussein must be regarded by all men of good will as one of the most important acts of justice in modern times.  Sadly, mass killers have too rarely been subjected to punishment, avoiding their just desserts through suicide (Hitler), death under suspicious circumstances (Stalin), or usually natural causes.  The humiliation of Saddam Hussein was a morally great thing.  Not to recognize and feel it is to ignore the claims of his victims.  It is an ugly thing.  Perhaps one can feel pity for Cardinal Martino, but not (except as an afterthought) for Saddam.

It is an interesting question, I think, for lawyers interested in "Catholic legal theory":  What constraints, if any, should our commitment to "justice" place on the cultivation, or the expression, of "pity" and "compassion" for those who commit great evils and whom we, in accord with the rule of law, prosecute punish?  I take it as given -- even if I cannot pretend that I find it easy, or even possible, to really embrace the idea -- that even Saddam Hussein, because he is a human person, possesses the dignity that comes with being loved by, and created in the image of, God.  I take it as given that this fact has implications for how he may be treated, notwithstanding the monstrous, depraved nature of his acts and character.  That said, I think Professors Heriot and Rappaport are right to regret Cardinal Martino's statements.  It is both appropriate, and important, it seems to me, to be pleased -- and for Church leaders to express pleasure -- when justice is done.

Conservatives and the Poor

I disagree with Rick's rejection of the characterization of Rob's quote as a significant "conservative" view of the causes of poverty.  (I'm referring here to his use of scare quotes when referring to the notion that poverty results from the moral defects of the poor themselves as a widespread "conservative" view.)  To be sure, this is not the view that all conservatives hold, and I doubt it's the view of anyone on this site.  But it is certainly a significant and mainstream strain of thought in the conservative movement and a frequent means of voicing opposition to government assistance for the poor (remember Reagan's "welfare queens"?).  (There's nothing new, by the way, about attempts to attribute the poverty of the poor to their immorality.  (cf. John 9.1-3.))  In addition, it often works as code for certain reprehensible racial views, but that is a different issue.  I had meant to blog about this series of comments by a conservative radio talk show host when it first appeared, but it now seems relevant to this discussion.  Here are  comments from Neal Boortz's (Cox Radio) August 3 show:

I want you to think about this, folks. You know, most of the people that earn minimum wage are teenagers. They're in the job market for a short period of time, they're learning some job skills, they're learning workplace skills. Most of the people who aren't teenagers that have a minimum-wage job, it lasts about three to four months, and they're off making more money. I want you to think for think for a moment of how incompetent and stupid and worthless, how -- that's right, I used those words -- how incompetent, how ignorant, how worthless is an adult that can't earn more than the minimum wage? You have to really, really, really be a pretty pathetic human being to not be able to earn more than the human wage. Uh -- human, the minimum wage.

Now, obviously this is a little more crude than the comment Rob posted, but it gets at the same basic point.  And I think we can all admit that these sorts of comments and innuendos are not all that unusual among conservatives.  I'm sure without too much trouble, I could dig up a few more examples.

Brennan's advice to new law students

In a few days, our law schools will welcome a new first-year class.  This essay, "To Beginning Law Students," by our own Patrick Brennan, is a great way for them, and us, to get ready.

Wednesday, August 9, 2006

The "conservative caricature"

Rob links to what he characterizes as Stephen Webb's "bright-line definition of liberals":  "You know you are a liberal if you think that the poor need money more than they need moral discipline."  And, he suggests that this statement is "astounding" for what it reveals about conservatives.

It seems to me, reading Webb's entire post, that the line about "moral discipline" is not at all offered as a "bright-line definition" of liberals, but is instead a throw-away in a long-ish post about what Webb regards as an interesting phenomenon, namely, that because of the lingering view among academics and professionals that liberalism, unlike conservativism, is "cool," many academics and professionals with views that Webb thinks are "conservative" -- and he focuses not on views about the poor, but on views about academic politics and abortion -- nonetheless recoil in horror from the suggestion that they might be, or might be talking like, "conservatives."

Here is the paragraph from which the "moral discipline" bit is taken:

. . . I came of age in the sixties, since most of the sixties happened in the seventies. The earnest rejection of institutional authority in the sixties became, when mainstreamed, a cultural and moral mess in the seventies. It is one thing for a few alienated college students to read Norman O. Brown, but it is another thing for the middle class to embrace the liberating promise of promiscuity. In the nineties, the middle class recovered its senses, but the poor, who are always more vulnerable to the ravages of immorality, paid the price for the seventies slide into recklessness. You know you are a liberal if you think that the poor need money more than they need moral discipline.

Now, should we regard as "astounding" the claim that "the poor . . . are always more vulnerable to the ravages of immorality"?  I guess I don't think it is so bizarre to note that those who are materially well-off are able, through wealth and connections, to protect themselves from many of the bad consequences of those those behaviors that Webb associates with Norman Brown and the seventies.  Strictly speaking, Webb does not say that "liberals believe that poor people need money more than they need moral discipline," but that "if you believe that poor people need money more than liberal discipline, you are a liberal."  Liberals and conservatives alike can agree -- as do Rob and I -- that the poor need money, and that we all need moral discipline.  I am happy to join Rob in rejecting the "conservative" view -- the scare-quotes reflect my skepticism that Webb, or indeed many conservatives at all, actually hold this view -- that the poor are poor because they lack moral discipline and that this discipline is sufficient to escape or avoid poverty.  (Though, again, it hardly seems strange to suggest that "moral discipline" -- along with functioning schools, a good job, affordable health care, etc. -- might be useful to someone struggling to escape poverty.) 

I do not mean to be pedantic, but I do not think it is fair to frame Webb's claim as -- in one commenter's words -- "get a job, hippie!", or to say that it is the "sentiment of all conservatives towards those struggling just to survive" that "if you are poor, it's because you are lazy."  Let's stipulate, for the sake of discussion, that the contemporary "conservative" political program emphasizes excessively the need of poor people for "moral discipline", at the expense of their need for money.  Is it fair to say -- not as part of a "definition", but simply as an observation -- that the contemporary "liberal" political program makes the flip-side mistake?

Conservative v. Liberal

Grant Gallicho points out that, over at the First Things blog, Stephen Webb (a conservative) has offered a bright-line definition of liberals.  I find the definition astounding, not because of what it says about liberals, but because of what it implies about conservatives.  He writes:  "You know you are a liberal if you think that the poor need money more than they need moral discipline."

If Mr. Webb is making an empirical statement that poor people lack moral discipline more than they lack money, that's not far from coming right out and asserting a causal relationship: poor people are poor because they lack moral discipline.  If he is making the less astounding claim that, within the subset of poor people who lack both moral discipline and money, it is wrong to focus on the latter to the exclusion of the former, I can go along with that (without, of course, conceding that the definition is more than a caricature of liberals).

Rob

Dems' "religion problem" continues

Commonweal weighs in on philosopher (and former Clinton aide) William Galston's critique of the Democratic Party:

Are Democratic Party leaders listening to Galston and others who warn about the Democrats’ deep-seated “religion problem”? So far the signs are not promising. When fifty-five Catholic Democrats in the House released a “Statement of Principles” last February, the careful parsing of their position on abortion was particularly disappointing. Galston reports that his own efforts to moderate his party’s abortion-on-demand policy have been met with vociferous resistance. Still, prolife Democratic candidates have received the party’s backing in important Senate and gubernatorial races for this fall. One thing is certain, the voters the Democrats need are waiting for the party to prove it is as open-minded and liberal about religion as it prides itself in being on other issues.

Rob

Tuesday, August 8, 2006

Tax Policy, Progressivity, and Catholic Social Thought (Part Three): Prudential Consideration of Other Principles and Secondary Effects

In my first two posts (here and here), I suggested general guidelines for and initial steps of analysis in evaluating a tax regime in light of Catholic Social Thought principles. I conclude that outline in this post, turning today to the secondary economic and social effects of taxation as a crucial but often neglected element. As part of the prudential judgment dimension of Catholic Social Doctrine, the law of unintended consequences cannot be ignored.

Let me begin with a a real-life illustration (see here and here) that could be a case model for exploring the application of Catholic Social Teaching to tax policy: In 1990, Congress imposed a luxury tax against yachts. Liberals like George Mitchell and Ted Kennedy touted this measure as a progressive means of forcing the rich to pay their faire share of taxes. Then reality dropped in with a resounding thud. The effect of the tax was to devastate the market for yachts, leading to a drop in sales of 77 percent and the loss of jobs for 25,000 people in the boat-building industry. An overwhelming majority of Senators, including George Mitchell and Ted Kennedy, called for the immediate repeal of this tax.

So what should have been the Catholic Social Thought position on the luxury tax on yachts? Surely we ought not endorse this tax based upon some purist view that it was progressive in formulation and was targeted toward the wealthy, blindly ignoring its real-world catastrophic effects? Surely the proper response based upon Catholic Social Teaching would be to preserve tens of thousands of jobs and maintain the health of the maritime sector of the economy, even if this also meant that, yes, some rich people would get to cruise around in big boats?

Accordingly, when developing a wise tax policy for a just society, progressivity in rate and primary application to the wealthy is not a talisman for virtue in revenue collection. In my last post, I pointed out that what appears to be progressive in theory may be anything but proportional to capacity to pay in actual application. In addition, even a tax that is applied in what appears to be an equitable manner nonetheless may so distort economic transactions, suppress economic growth, depress positive incentives, or encourage negative incentives that the tax’s detrimental secondary effects far outweigh any supposed advantage by virtue of its supposed progressivity. To offer but one example, thankfully not reflected in today’s tax policy (although not unprecedented in the history of American taxation), a marginal tax rate of 100 percent (or even 60, 70, 80, or 90 perfect) might appear magnificently progressive, but such confiscatory rates would destroy any incentive for economic production above a certain level and, for that reason, would result in no increased collection of revenue. The luxury tax on yachts discussed above is a more recent example of liberal tax policy colliding with economic reality.

Furthermore, some argue that certain kinds of taxes or taxes against certain items serve worthy public policy goals despite their manifestly regressive nature. Most prominent in this category would be the “sin tax” on cigarettes, a gigantic mark-up in price that falls most heavily on the poor but that nonetheless is justified by its supporters as designed to deter smoking (although we all know the real motivation is to raise revenue in a less controversial way or at least against those least likely to complain to legislators).

As another example, among the most regressive taxes imposed today are the various federal and state taxes on gasoline. While being forced to pay more at the pump causes but little inconvenience to the wealthy (as a person can only fuel and drive one car at a time), the tax gouges those of limited income who need transportation to work, families wishing to take a summer vacation, working class people who make a living in the trucking industry, and everyone who has to pay higher prices on groceries, clothing, and consumer goods as the increased transportation costs are passed along to the consumer.

Yet the same prominent figures on the political left, in Catholic circles and elsewhere, who claim to support progressive taxation tend to be strong supporters of the gasoline tax, justifying it as necessary to discourage use of petroleum fuels, force people to use public transportation, and improve the environment. During the Clinton Administration, Al Gore advocated substantial hikes in all fuel taxes for just these reasons. I am not particularly fond of those arguments and think the regressive effect of the gasoline tax is troubling, but I haven’t heard any calls from the leftward side of the Catholic Social Thought community to bring those tax rates down. My primary point today, however, is not that that the gasoline tax ought to be reduced, but that plausible arguments have been offered to justify even such regressive taxes as advancing other overriding public policies. Thus, the multi-dimensional nature of any evaluation of tax policy is confirmed.

Finally, the progressivity of a proposed tax simply is not an argument for loading an additional tax burden upon any given sector of society. When any form of taxation is proposed, we certainly should consider its potential effects on the least advantaged elements of society, as well as the other dynamic effects it may have on the economy, society, liberty, cultural choices, etc. But even if a tax passes muster on such factors, we have merely reached the preliminary conclusion that it is a fair tax and is not an overly disruptive measure if any tax is to be imposed. Whether increasing taxes of any type (either directly or indirectly by allowing tax cuts to expire) is a prudent idea must be a separate stage of analysis. The case for greater governmental spending, with attendant increases in taxes to fund larger government, must be made independently.

Two years ago, Rev. John J. Myers, Archbishop of Newark, explained that Catholic Social Thought is a tool for conscientious evaluation of public policy, in which people of good conscience but motivated by the same goals may come to different places:

The Church’s social teaching is a diverse and rich tradition of moral truths and biblical insights applied to the political, economic, and cultural aspects of our society. All Catholics should form and inform their conscience in accordance with these teachings. But reasonable Catholics can (and do) disagree about how to apply these teachings in various situations.

For example, our preferential option for the poor is a fundamental aspect of this teaching. But, there are legitimate disagreements about the best way or ways truly to help the poor in our society. No Catholic can legitimately say, “I do not care about the poor.” If he or she did so this person would not be objectively in communion with Christ and His Church. But, both those who propose welfare increases and those who propose tax cuts to stimulate the economy may in all sincerity believe that their way is the best method really to help the poor. This is a matter of prudential judgment made by those entrusted with the care of the common good. It is a matter of conscience in the proper sense.


Greg Sisk

The Ave Maria move

Here is a long article from the New York Times, "Our Lady of Discord," about Tom Monaghan and some of the turmoil surrounding the planned Catholic community in Florida.

Spreading the Love of Jesus

If you're looking for a helpful example of how followers of Christ in positions of public leadership can engage the secular legal culture constructively, don't read this.

Rob

Interesting Legal Document Site

Not that reading about estate taxes doesn't cure my summer doldrums every time, but if anyone else needs something different, take a look at Yale Law School's Avalon Project, which "posts hundreds of documents from the history of law and government, some of them annotated by Law School Faculty."  The documents are organized by centuries and by categories, and they're searchable.  They include potential MOJ-related documents such as a translation of the transcript of the trial of Joan of Arc, documents from the Nuremberg Trials, and the Decree of 1059 Concerning Papal Elections.

Lisa