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.

Wednesday, July 26, 2006

Prudence and the Estate Tax

By Rob Vischer

Sometimes I have the sinking feeling that just about all policy issues (other than abortion and same-sex marriage, perhaps) can be too easily shoe-horned into the realm of "prudence" despite the wealth of wisdom offered by Catholic social teaching.  In an attempt to bolster my flagging confidence, can we agree that the existence of the estate tax -- putting aside questions of rate, when it kicks in, etc. -- is supported by CST, and perhaps more strongly, that its elimination would be condemned by CST? 

Let's assume, for the sake of argument, that the estate tax were to apply only to estates of $100 million or more, and that its rate was 5%.  At these numbers, it is difficult to discern significant incentive-based consequences in terms of wealth creation and productive behavior.  There would still be calls for its elimination, of course, but they would run along the lines of "It's mine -- hands off!"  Such bright-line principles, lacking a functional justification relating to the common good (or the option for the poor, solidarity, etc.) appear to me to be directly opposed by CST.  And unless we have in mind a fixed maximum amount of revenue that the government should be empowered to collect, it doesn't make sense to speak of balancing the estate tax's elimination through an increase in income taxes, for example (which could bring incentive-based consequences).  Eliminating the estate tax would simply reduce society's collective capacity to pursue the common good with no clear functional benefit.

Any dissenters from this view?  And is the dissent itself grounded in the norms of CST?

Rob

Tuesday, July 25, 2006

Parental notice and abortion

By Rick Garnett

Forbes reports that "a bill that would make it a crime to take a pregnant girl across state lines for an abortion without her parents' knowledge passed the Senate Tuesday, but vast differences with the House version stood between the measure and President Bush's desk."  The piece continues:

Struggling to defend their majority this election year, Republican sponsors said the bill supports what a majority of the public believes: that a parent's right to know takes precedence over a young woman's right to have an abortion. . . .

Democrats complained that the measure was the latest in a series of bills designed chiefly to energize the GOP's base of conservative voters.

"Congress ought to have higher priorities than turning grandparents into criminals," said Sen. Edward M. Kennedy, D-Mass.

Understandably reluctant to enact legislation that might "energize the GOP's base of conservative voters," it appears that the Democratic leadership in the Senate is not giving up in its efforts to protect such grandparents.  The Forbes story reports:

Procedural hurdles also stood in the way. Following the vote, Democrats prevented Majority Leader Bill Frist, R-Tenn., from appointing Senate negotiators to help bridge the differences with the House version. Sen. Dick Durbin, D-Ill., objected to the conferees' appointment on the grounds that the bill had not been considered by a committee and that negotiations were premature.

"I hope this is not a sign that they're going to try to obstruct this bill," Frist said.

Polls suggest there is widespread public backing for the bill, with almost three-quarters of respondents saying a parent has the right to give consent before a child under 18 has an abortion. . . .

Reason and Faith, Science and Religion

By Michael Perry

[Some MOJ-readers may want to check this out:]

New York Times
July 25, 2006

Books on Science

Faith, Reason, God and Other Imponderables
By CORNELIA DEAN

Nowadays, when legislation supporting promising scientific research falls to religious opposition, the forces of creationism press school districts to teach doctrine on a par with evolution and even the Big Bang is denounced as out-of-compliance with Bible-based calculations for the age of the earth, scientists have to be brave to talk about religion.

Not to denounce it, but to embrace it.

That is what Francis S. Collins, Owen Gingerich and Joan Roughgarden have done in new books, taking up one side of the stormy argument over whether faith in God can coexist with faith in the scientific method.

With no apology and hardly any arm-waving, they describe their beliefs, how they came to them and how they reconcile them with their work in science.

[To read the article, click here.]
_______________
mp

Horwitz on Stone on Bush's veto

By Rick Garnett

Paul Horwitz has a very good post, over at Prawfsblawg, commenting on Geoffrey Stone's claim that President Bush's veto of the public-funding-for-embryo-destroying-research bill exhibited "reckless disregard for the fundamental American aspiration to keep church and state separate."  Stone writes:

What the President describes neutrally as “ethics” is simply his own, sectarian religious belief. Is this an ethical (or legitimate) basis on which a President should veto a law? Of course, Mr. Bush is entitled to his belief. He is entitled, for his own religious reasons, to choose not to donate an embryo he creates to try to save the lives of living, breathing children. More than that, he is entitled to protect the interests of others who do not want the embryos they create to be used in this manner. Thus, he could ethically veto a law that required all embryos to be destroyed in the name of scientific research, even over the religious objections of their creators. But in what sense is it “ethical” for Mr. Bush – acting as President of the United States -- to place his own sectarian, religious belief above the convictions of a majority of the American people and a substantial majority of both the House of Representatives and the Senate? In my judgment, this is no different from the President vetoing a law providing a subsidy to pork producers because eating pork offends his religious faith. Such a veto is an unethical and illegitimate usurpation of state authority designed to impose on all of society a particular religious faith.

Paul writes:

[The President's] veto statement does not speak in clearly religious terms at all.  Rather, he simply argues that the bill does not strike a proper ethical balance.  Surely the President's sense of what is ethical is substantially derived from his religious beliefs, but the same could be said, directly or indirectly, of many Americans.  And for those whose ethical beliefs are at least nominally untethered to any religious views, those of us who are non-philosophers are likely at some point to come to rest on arguments that are equally publicly inaccessible: "It's just right."  "It's just wrong." 

Unless Professor Stone thinks that we are all obliged to appeal to some form of utilitarian philosophy, or some other closely reasoned form of moral philosophy, every time we give our sense of what is ethical or unethical, I can see no reason why the President's publicly offered reasons can be seen as intrinsically "unethical."  And if I am wrong, then I would expect that Professor Stone would demand the same level of reason-giving from any legislator who voted for the stem cell bill on the basis that encouraging medical research is the "ethical" thing to do, or simply "the right thing to do."

Politicians may justifiably suffer if they offer reasons for their actions that satisfy only a narrow band of the public; one of the political benefits of publicly accessible reasons is that they enable public officials to retain the support of larger coalitions of voters.  But Professor Stone seems ultimately to argue that there is something unethical or illegitimate not just in speaking in religious terms, but in having religious motivations, and acting on them, regardless of what reasons the public official gives publicly.  That, I think, is altogether too expansive a view of "the separation of church and state."  I may think the President's veto was wrong, but it certainly was not wrong for those reasons.

It seems to me that Professor Stone, like many others, assumes that an objection to public funding of research involving the destruction of human embryos is -- and could only be -- a "religious" or "sectarian" one. It is not the case, though, that the arguments against such funding require, or always involve, recourse to revelation. I am starting to think that *all* moral claims -- e.g., "it is wrong to deny equal protection of the laws on the basis of race" -- are, in the end, "religious" arguments, but put that aside. The claim that there is something about a human embryo such that its destruction for research purposes ought not to be funded by the government -- whether we are moved by it or not -- is not, it seems to me, any more "religious" than any other argument about how human persons ought to be treated.

Another Augustinian effect?

By rstith

Another possible change that could come with a more Augustinian pope would be in international law. Pope John Paul II was a consistent universalist (or a consistent centralist, if you want to put a negative spin on it). While of course upholding the Catholic principle of subsidiarity, to my knowledge Pope John Paul always opposed localistic isolationism: He favored a united Italy, a united Europe (which he thought his own Poland should join), and a stronger United Nations. But with "big" more and more seeming to mean "bad", I wonder whether our new pope might not seek to find new ways to defend particularism (somehow without abandoning the rest of the world).

Law and Aquinas's Metaphysics

By Thomas Berg

U of Alabama lawprof William Brewbaker posts this on SSRN:

"Thomas Aquinas and the Metaphysics of Law"

I argue in the paper that [Aquinas's] Treatise [on Law] cannot be fully understood absent a focus on Thomas' metaphysics and that, indeed, Thomas' metaphysical approach raises important questions for contemporary legal theory. . . .  [Among other things,] attention to Thomas' hierarchical view of reality exposes tensions between Thomas' top-down account of law and his sophisticated bottom-up observations. For example, Thomas grounds human law's authority in its foundation in the higher natural and eternal laws. On the other hand, he is well aware that many if not most legal questions involve determination of particulars - the resolution of questions that might reasonably be answered in more than one way. I argue that his metaphysics sometimes works against Thomas' inclination to give place to human freedom in the creation of law.

Tom

Benedict and Augustinianism

By Thomas Berg

Welcome to my friend and colleague Lisa.  From a few things I've read, I've seen several suggestions about what the pope's "Augustinianism" means:

(1) He is somewhat more pessimistic about the world and the possibilities for the Church benefiting from secular thought.  Not totally pessimistic, but more so, compared with the Thomistic emphasis on human reason in which both Christians and non-Christians share.  See, e.g., this analysis, which doesn't make this distinction exactly, or put John Paul II on the other side, but which does emphasize the "critical stance" toward the world that an Augustinian perspective generates.

Does this contrast with John Paul II?  I'm no expert on this.  But wasn't there frequently a sense in his writings that he was calling the world back to its highest and deepest principles -- protection of life, true freedom, and so forth -- rather than claiming that the orientation of the world was more fundamentally and deeply flawed (the Augustinian emphasis)?  Again, no polar opposites here, but possibly differences in emphasis.

The article I cited above also raises a specific and interesting potential application of this difference.  In his writings on economic life, John Paul II is relatively positive about the market system and the opportunities it  affords for human growth and creativity.  Not unqualifiedly so, of course, but reasonably positive: a kind of "two cheers for capitalism," as Joseph Bottum put it last year.  Augustinians, according to the article I cited above, tend to "take a more critical approach, arguing that there are economic practices characteristic of [global capitalism] that cannot be squared with the social teaching of the Church."  This may fit with Bottum's assessment that Benedict has given and will give only "one cheer for capitalism": that, although certainly no socialist, he "stands to the left of his predecessor on economic issues."  (See here also.)

(2) I also have seen the speculation then that a more critical stance to the world will lead Benedict to favor a leaner, more doctrinally faithful if smaller Church.  (But couldn't this come in tension with the Augustine who fought the Donatists, the people of their time who wanted a leaner, uncompromised church?)

(3) "This Augustinian orientation has made the new pope more sensitive to issues of spirituality in the life of faith" in contrast with a relatively greater Thomisic emphasis on reason.  That's a quote from evangelical theologian, and a leader in the evangelical-Catholic discussions, Timothy George.  I doubt that there's much difference from John Paul II here -- didn't he place a great deal of emphasis on spirituality (although it seems to have come from other philosophical sources)?  In any event, the analysis I cited in #1 adds:

Pope Benedict is one of the many members of his generation who, while not disagreeing with the content of Thomist thought, believed that the scholastic presentation of the faith doesn't exactly set souls on fire unless they happen to be a particular type of soul with a passion for intellectual disputation. He has said that "scholasticism has its greatness, but everything is impersonal."

In contrast, with Augustine "the passionate, suffering, questioning man is always right there, and you can identify with him."

(4) According to George, Benedict's Augustinianism "has also given him a keen appreciation for another great German theologian, the Augustinian monk and church reformer Martin Luther. This enabled Ratzinger to play a key role in the historic Joint Declaration on the Doctrine of Justification, an important agreement between Lutherans and Roman Catholics."

I don't know enough about Ratzinger/Benedict to evaluate all these points; and perhaps I've emphasized issues of particular interests to Protestants like me.  But I thought I'd lay out these suggestions that I've read, and see what others think.

Tom

Monday, July 24, 2006

An important voice

By Patrick McKinley Brennan

Welcome to Lisa Schiltz!  We are both honored and emboldened by your joining this conversation. Welcome! I'd love to accept Lisa's invitation to talk here about where Benedict XVI is perhaps inviting us to go, especially as regards "Augustine vs. Thomas."   

Benedict XVI on Women and St. Augustine

By Elizabeth Schiltz

(I apologize in advance.  I know this is too long and involved, but this is my first post, and I’m nervous.  I suppose this is the virtual equivalent of talking too fast.)

Being of almost pure Polish extraction (Poland being the birthplace of 7/8 of my great-grandparents), I grew up with a strong emotional attachment to John Paul the Great.   This was deepened over the past couple of years when I actually started reading his writings.    Even though I was born and raised in Germany, and the 1/8 of my blood that isn’t Polish is German, I’m still having trouble getting used to Benedict XVI. 

A few weeks ago, I participated in a wonderful, interdisciplinary St. Thomas summer seminar on “The Theology of Joseph Ratzinger --- Benedict XVI.”   Reading incredible books like Ratzinger’s Introduction to Christianity certainly deepened my appreciation for our new Pope. What I read and learned at this seminar raised for me two particular questions about the potential influence of Benedict on Catholic Legal Thought.

One of the things I loved most about JPII is what he has to say about women, some of which I explore in Sacrifice of Motherhood and Motherhood and the Mission .  I know that much of what he wrote was written either by or in collaboration with then-Cardinal Ratzinger, and I’ve been reading some of the earlier stuff by Ratzinger on women.  How could a working mom like me not love a guy who would write (from Mary: The Church at the Source):

In my opinion, the connection between the mystery of Christ and the mystery of Mary . . . is very important in our age of activism, in which the Western mentality has evolved to the extreme.  For in today’s intellectual climate, only the masculine principle counts.  And that means doing, achieving results, actively planning and producing the world oneself, refusing to wait for anything upon which one would thereby become dependent, relying rather, solely on one’s own abilities. It is, I believe, no coincidence, given our Western, masculine mentality, that we have increasingly separated Christ from his Mother, without grasping that Mary’s motherhood might have some significance for theology and faith.  This attitude characterizes our whole approach to the Church. We treat the Church almost like some technological device that we plan and make with enormous cleverness and expenditure of energy.  . . .

What we need, then, is to abandon this one-sided, Western activistic outlook, lest we degrade the Church to a product of our creation and design.  The Church is not a manufactured item;  she is, rather, the living seed of God that must be allowed to grow and ripen.  This is why the Church needs the Marian mystery;  this is why the Church herself is a Marian mystery.  There can be fruitfulness in the Church only when she has this character, when she becomes holy soil for the Word.  We . . .  must once more become waiting, inwardly recollected people who in the depth of prayer, longing, and faith give the Word room to grow.”

My first question is whether this Marian dimension of the Church finds much (or any) expression in Catholic Social Teaching or Catholic Legal Thought.  Or do we run the professional risk, as legal academics trying to change the world through our blogging, conferencing, and even old-fashioned paper articles, of “treating the Church almost like some technological device that we plan and make with enormous cleverness and expenditure of energy”?

My second question is about St. Augustine.  At the UST Summer Seminar, much was made of the fact that Benedict is very “Augustinian”, in contrast to JPII, who was apparently much more Thomistic. Indeed, Benedict certainly does seem to quote Augustine a lot in the things I’ve read so far.  As someone whose familiarity with Augustine consists of having read The City of God in college, and more recently reading Gary Will’s biography of Augustine, I was too timid to ask what that meant in the roomful of philosophers and theologians at the seminar.   Do any of you have any thoughts about this distinction between JPII and Benedict?    More importantly, though, is this distinction likely to make any practical difference with respect to any of the issues of interest to MOJ?

Lisa

Registry of Amnesty International Supporters Who Oppose Abortion

By rstith

The movement of Amnesty International toward supporting a “right” to kill unborn children has been a matter of great distress among its consistent-life constituency. The sample form letter from AI found below details this movement toward supporting abortion.

All those who report on having called AI’s national office in the United States received curt responses stating that AI is maintaining neutrality, in contradiction to the form letters the same people receive after writing to AI. We have found no indication that the phone calls or the letters are being tallied in order to give decision-makers an accurate assessment of the widespread dismay their decisions can cause. The "policy consultation process" the form letter claims to be underway must be problematic when those who call are not having their names and addresses taken down, while being told emphatically that this process is nothing but a rumor.

Accordingly, Consistent Life (an international network for peace, justice and life--of which I am a board member) is organizing a drive to allow this constituency to be registered and counted (see text at link after next sentence). All those who have ever supported Amnesty International financially or in any other way are invited to sign it at: www.petitionspot.com/petitions/consistentlife

We ask sympathizers to forward this message on to all individuals and listserves who may be interested. Links on web pages and notices in newsletters and newspapers would be much appreciated, along with any other ideas for getting the word out.

The on-line format allows a running tally to be seen by anyone at any time. Tallies will be announced to the media periodically at appropriate points.

Please send this message on to interested others! Thanks.

Richard Stith (for Consistent Life)

Here is Amnesty International’s form letter detailing its movement toward possibly endorsing a “right” to abortion:

> >From: Betsy Ross <[email protected]>
> >Sent: May 5, 2006, 10:04 AM
> >Subject: Re: AIUSA and Abortion
> >
> >
> >   Thank you for taking the time to share your concerns.
> >
> >   Although AI does not currently take a position on abortion, you are
> >   correct that the AI movement is contemplating whether and how to address
> >   it.
> >
> >   As you probably already know, our policy agenda, and the policies
> >   themselves, are determined by AI members through a democratic process.
> >   The reason that abortion is being discussed right now is that members
> >   throughout the movement felt that AI's work to stop violence against
> >   women and promote women's human rights necessitates that we consider
> >   whether a more comprehensive policy on sexual and reproductive rights,
> >   potentially encompassing certain abortion-related issues, would enable
> >   AI to be more effective in these areas.  This was expressed in a
> >   decision taken last August at AI's 2005 International Council Meeting
> >   (ICM), which is AI's highest decision-making body.
> >
> >   The 2005 ICM decided that AI will develop a policy statement and a
> >   strategy for defending and promoting sexual and reproductive rights.  At
> >   the same time, the ICM decided that an extended consultation process
> >   should be undertaken to determine whether AI should adopt a policy on
> >   abortion and how such a policy should be formulated.  We have just
> >   embarked on this process.  The first stage involves considering whether
> >   and when AI should develop policies on three specific issues that have
> >   been identified as particularly urgent in the context of AI's campaign
> >   to stop violence against women:  1) access to health care for the
> >   management of complications arising from abortion; 2) access to abortion
> >   in cases of rape, sexual assault, incest or risk to a woman's life; and
> >   3) the removal of criminal penalties for those who seek or provide
> >   abortions.
> >
> >   All other abortion-related issues, including whether a woman's right to
> >   physical and mental integrity includes a right to terminate pregnancy,
> >   will be considered by the 2007 ICM.  The extended timeframe for
> >   consultation and decision-making is a reflection of the recognition that
> >   these are profound decisions that require reflection and discussion so
> >   that the AI movement can move forward as one.
> >
> >   Please let us know if you would like to receive an update on how this
> >   process is unfolding.  We expect that we may have some new information
> >   in about six months or so.

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