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.

Tuesday, April 18, 2006

The Immigration Debate

By Michael Scaperlanda

A few thoughts on the current immigration debate.  The Church teaches (as I understand it) that persons have a right to emigrate.  But, John Paul II noted that emigration – the uprooting of a person from one culture and placing him in another - is in some sense an evil.  It also teaches that while sovereign nations have the right to control their borders, including denying admission to foreign subjects, this right is not absolute.  The right of the sovereign to restrict immigration is a qualified right, allowing a sovereign to deny the emigrant entrance only if necessary to protect the country and its inhabitants.  For the most part, Catholic teaching on emigration/immigration corresponds to the Law of Nations as it developed through the 19th Century.

The Church’s teaching is based on its understanding of the universal and particular nature of human existence and the universal destination of goods. The universal - every person has inherent dignity, including the ability to fully develop.  The particular – this dignity manifests itself in particular places at particular times and within particular communities.  The person develops in community and, in turn, has obligations toward that community.  There may be times, however, when flourishing within a community is impossible.  At these times, emigration might be the best option.  Because of the inherent dignity of the person and the universal destination of goods, potential receiving countries have some duty toward potential immigrants, including the duty to receive them, at least when it won’t put too great a burden on the domestic situation.

Although not perfect, we could make an analogy to a family. The family has a particular right to home and land ownership and to use their resources for the flourishing of the family.  But, even the family’s wealth and resources ought to be deployed for the common good of all.  If they have excess (in money, land, or talent), it ought to be deployed for the benefit of larger community.  In the Old Testament, for example, farmer’s were required to leave some crops in field so that they could be gleaned by the poor.

Given this understanding, I would ask a series of questions about our current and proposed immigration policies.

  1. Do we need to further restrict immigration to protect our nation (family)?  Or, do we have room in the pool house or out at the ranch for a few more desperate people trying to support their families?
  2. Can we accommodate the people who have squatted on our land or in our pool houses?  Even if we didn’t let them in the front door, aren’t we partly responsible for them using the backdoor, enticing them with jobs and then not enforcing our own law, which would punish the employer?
  3. Even if it is in some sense just to deport those who line-jumped (this is where the term Sooner came from in the Land Run days), if we don’t have the political will to deport the 11 million or so people who are here unlawfully (and we don’t), should we find ways to bring them out of the shadows and into the mainstream?  Or, should we further marginalize them, allowing them to be exploited because of their undocumented status?
  4. Do we, like a wealthy family, have excess riches, which could be used for the common good of the hemisphere or even the world?  Are we deploying those riches in such a way that people in other countries (particularly to our south) have a greater ability to develop and flourish (thereby decreasing the desire or need to emigrate).

If these are some of the right questions, I would tentatively answer as follows. 

  1. We should find a way to integrate the current undocumented into our society because they have started to build lives here, our desire for cheap and exploitable labor has contributed to their presence, we don’t have the political will to deport 11 million plus people, and we should minimize the possibility of exploitation.
  2. We should get serious about border enforcement – placing most of the burden on the employer (the supplier of employment) and not the worker.  A quarter of a century ago, Fr. Hesburgh said that it was necessary to close the back door on immigration in order to have a healthy front door.  We tried to do that 20 years ago with employer sanctions but for many reasons that has failed.  10 years ago we started penalizing the alien but that hasn’t worked either.
  3. We need to rethink the front door policy.  We allow family reunification but there are long waits if you are coming from countries like Mexico. A noncitizen can also immigrate if they have possess the right skills, but this is weighted heavily toward the educated and credentialed.  Do we have room for more at the bottom rung of the economic and skill ladder?  Can we let them in without harming the domestic labor force?  If so, we ought to be more generous in allowing in less skilled workers who may have a greater need to access our resources in order to flourish.
  4. We need to make explicit the tie between foreign aid and development and immigration.  A just immigration policy starts with using our excess wealth to help countries develop so that their citizens can develop fully as humans in their own countries and in turn participate in the development of their own culture.

I welcome your thoughts,

Michael

By rstith

P.S.

The greatest danger to truth-seeking in today’s world is nihilism and sophism, rather than erroneous faith. Those who believe erroneously at least think truth exists and feel a responsibility honestly to seek it out in those many areas where they do not already have an answer. They are, therefore, better partners in dialogue than are nihilists and sophists.

On Defending the Question

By Rick Garnett

No need to defend the question, Eduardo, it is a fair one and you pose it well. Your distinction among the three categories I introduced is useful, though I think I would not say that the faithful Catholic intellectual's work is only in categories (2) and (3) (ie exploring uncertainties and casuistic applications)) and that there is really nothing to say about category (1), i.e. the bedrock truths. It is still important to be able to articulate in reasoned terms why abortion, for example, is a moral evil. While we accept that truth as a matter of authority, we also should be prepared to engage seriously and honestly with the arguments to the contrary using the tools of reason, and without relying on authority exclusively. So, why should our acceptance of authority make our arguments any less interesting or important? Our arguments should be evaluated on the basis of their coherence and persuasiveness.

Furthermore, this discussion raises the very vexed question of whether the Magisterium changes. If it does, what role do faithful Catholic thinkers. theorists, intellectuals etc. play in that process? How does one understand, address, use, confront or even challenge authority in the face of one's obligation to accept authority? If one is a Noonanite, one will accept that the process of change does happen, and that Catholic intellectuals have played a part in the process that may involve some kind of critique of magisterial teachings. If one is a Dullesite (Dulleser?), one challenges the premise of change, and thinks very differently about the relationship of the Catholic intellectual and authority.

Eduardo makes the excellent point that we are much more explicit about the nature and binding effect of authority than secular thinkers who do in fact adhere to authority but don't admit it, which makes the Catholic "case" a somewhat different and perhaps more interesting one. I agree, though I would add that this puts us one up. More important, the distinction points to a cultural ambivalence about the very concept of "authority," which I think is reflected most starkly in Eduardo's basic question: why should we take seriously anyone who accepts "authority"? That is a question that reveals how fundamentally our world view has been unmoored from the religious vision.

--Mark

Berg on Limiting Religious Freedom

By Rick Garnett

Tom's latest scholarly contribution (until his next one, which I expect in . . . a few hours!) is now available on SSRN.  Here is the abstract for "The Permissible Scope for Limitations on the Freedom of Religion and Belief in the United States:

This article is part of a symposium comparing the protections for freedom of religion and belief in the United States, Canada, and Europe. The article reviews the protections of freedom of religion in the United States and the bases for limiting religious freedom. It summarizes federal protection under the Free Exercise and Free Speech clauses and then sets forth the broader protections for religiously grounded conduct provided by federal and state religious-freedom statutes (RFRA, RLUIPA, etc.) and state constitutional provisions. It also compares limitations on religious freedom in American law with related but often different concepts in European law, and it discusses features in American history, constitutional structure, and political culture that have led to distinctive treatment of constitutional religious freedom rights in America. The article, like the others in this symposium conducted by the European-American Law and Religion Scholars' Consortium, concludes with analysis of a series of hypothetical cases meant to provide common material for comparisons across nations.

By rstith

More on Authority and Reason

Re the question of whether acceptance of authority makes reason suspect: It seems to me that reason can recognize no limit but truth. Therefore, any fallible principle or conclusion must be able to be questioned by reason. I don’t fully trust the reasoning of those who start with impediments to truth-seeking, whether they be believers or nihilists—which of course does not mean that I don’t take their arguments seriously nor that verifiability or certainty is necessary for a claim to be true.

However, those authoritative principles or conclusions which are infallible are not impediments to truth-seeking. Rather, their denial is such an impediment. Therefore, their acceptance of the essential content of the Catholic faith does not make St. Thomas or others suspect in their reasoning, though I suppose Eduardo is right if he suggests that such acceptance may make some of them intellectually lazy at times. (Already having an answer, they may not search as thoroughly as would someone desperate to find an answer. But this seems an empirical question of human motivation rather than of principle.)

Of course, those who do not accept the essential content of the Faith are right by their own lights to approach our work with reasonable suspicion, just as we should approach theirs.

quick response to Eduardo

By Richard Myers

Thanks to Eduardo and others for the stimulating questions and comments. One initial thought I had about this is that a lot of thinking about the obligations of Catholic scholars and Catholic universities has addressed an "internal" perspective. I think this is a useful starting point. Should a theology department at a Catholic university include lots of folks (Dan Maguire at Marquette for example) who dissent from Church teaching on a whole host of issues. If a theology department does, does it have a claim to be thought of as Catholic. I think that this was the main focus of the debate about Ex Corde. One, admittedly simplistic, way to think about this is as a truth in advertising issue. The particularly troubling thing for people who favored a strong implementation of Ex Corde was that noted dissenters were teaching in the name of the Church and at schools with a claim to being Catholic. So, if and when these folks left Catholic schools (Father Curran leaving CUA) there was no campaign (not that I can recall at any rate) for a heresy trial or for other disciplinary actions.

This doesn't really address Eduardo's question because Catholic scholars whether they are teaching at a Catholic school or not would still owe, according to Vatican II, a submission of intellect and will to authoritative Church teaching. (This is not, it should be noted, an obligation unique to scholars.) His question, I take it, is whether Catholic scholars who follow Vatican II on this point risk not being taken seriously in the broader acadmic community.

I think this would depend on the quality of their arguments and the manner in which the arguments are made. I suppose if people thought that a Catholic scholar didn't really believe in his own articulated positions (he was just publishing them to appear faithful) that this would be an additional obstacle to having his published opinions taken seriously. But, let's assume that this is not the case and that the Catholic scholar really believes what he publishes. Will people still "suspect" his writings because they coincide with what the Church has taught on some issue of morals. My view is I think this would depend on the quality of the arguments and the way in which they are expressed.   

Richard 

      

More Data

By Eduardo Penalver

Reuters:

President Bush refused on Tuesday to rule out nuclear strikes against Iran if diplomacy fails to curb the Islamic Republic's atomic ambitions.

Iran, which says its nuclear program is purely peaceful, told world powers it would pursue atomic technology, whatever they decide at a meeting in Moscow later in the day.

Bush said in Washington he would discuss Iran's nuclear activities with China's President Hu Jintao this week and avoided ruling out nuclear retaliation if diplomatic efforts fail.

Asked if options included planning for a nuclear strike, Bush replied: "All options are on the table. We want to solve this issue diplomatically and we're working hard to do so."

Defending the Question

By Eduardo Penalver

I agree with much of what Mark says.  And I'm certainly not trying to push that old anti-Catholic bias.  On the other hand, it does seem to me that Aquinas is often at his weakest when he is trying to defend some of the indefensible things (e.g., the execution of heretics) forced on him by the authorities of his day.

But just to defend the question, it seems to me that Randy Barnett (channelling Sanford Levinson) makes a similar move to the one I am raising (but not necessarily endorsing) in the context of constitutional theory when he says that one test of a good constitutional theory is whether it forces the theorist to embrace unhappy endings, i.e., conclusions that he does not really favor as a personal matter.  If Catholic theorists are not willing to accept the possibility of (certain) unhappy endings, then are we failing Barnett's test? 

UPDATE:  Reading Mark's post, it seems to me that he leaves room for Catholic scholars to (1) work out uncertainties left by authoritative teachings and (2) apply those teachings in concreate situations.  But, as I read him, he forecloses the possibility that Catholic scholars can (3) really call into question teachings at the level of basic principles.  So any argument that contradicted, say, the categorical sinfulness of homosexual acts or of abortion (both of which I assume to exist at the level of basic authoritative principle) would be ruled out in advance.  I'm not denigrating (1) and (2), which I agree leave a lot of room for scholars to work (though I question what the relevance of that scholarship would be to people not already convinced of the correctness of the first principles at work in (1) and (2)).  But what I'm really asking about is scholarship that operates on the level of generality and abstraction of (3).  And I think a great deal of Catholic legal theory does purport to operate at that level.  My question is, if the conclusions reached with respect to questions operating at the level of generality of category (3) are provided in advance by an external authority, does that undermine in some way the credibility of Catholic legal theory that addresses those questions?  An affirmative answer does not mean that Catholic legal theorists are somehow inferior, but it does perhaps call into question the relevance of our discussions of these issues for a wider audience. 

The fact that many non-Catholics kow-tow to their own "authorities" (something that I agree with Mark is surely the case) does not reduce my interest in the question I'm asking.  This is a question that could be asked in any number of contexts (the Cuban academy comes to mind).  I'm asking it with respect to Catholics because, well, I'm Catholic and this is a blog devoted to Catholic legal theory.  But I have no doubt that a great many scholars with any number of ideogical and religious commitments argue towards, what are for them, preordained conclusions.  In one respect, though, Catholics are in a different position: Catholic legal theory self-consciously embraces authority in a way that is different from, say, a liberal academic who, as an individual matter, refuses to question the correctness of Roe v. Wade.

Finally, I want to emphasize that this is a sincere question.  I'm really not sure what I think about this.  Obviously, I have my own biases that push against authority.  That is in part due to my personality, but it is also probably due in part to the fact that I've grown up in a society that places a great deal of value on intellectual autonomy.  Nevertheless, my mind remains open, and I'm just hoping to spark a discussion from which I can learn and, hopefully, deepen my thinking on this issue with the help of the diverse and smart group of scholars who write for MOJ.

Taking Catholic Intellectuals Seriously

By Rick Garnett

By the logic of Eduardo's argument. if I understand it accurately, we should not bother trying to understand the hard parts in Aquinas. In other words, if it is all a matter of "fides", why bother trying to understand the "ratio"? Besides the vulnerability of his argument to this kind of reductio ad absurdam critique, it also seems to presume that the Catholic intellectual who is faithful to the magisterium is cynically contriving arguments that will "fit" the Church's teaching, and not     genuinely trying to understand and express the teaching through the tools of reason - a task typically regarded as a moral imperative.  It also ignores that type of intellectual's obligation to discern and explicate the enormous complexities that arise when one attempts to apply church teaching in the "real world." For example, one who accepts the moral evil of abortion has not therefore been presented with a set of readymade responses to the whole range of political, legal and moral questions that arise from that basic recognition.The tools of reason are needed, not just to understand the basic moral principle, but to understand what it means for us.  And, finally, the argument does not sufficiently acknowledge the tendency of at least some secular thinkers to built elaborate reasoned edifices upon unquestioned (and unacknowledged) shibboleths. I know Eduardo did not mean this, and I know he is wrestling in good faith with the question of what it means to be a Catholic intellectual or theorist or thinker, but the argument he puts forward reminds me of the old canard used to keep Catholics out of the "elite" professoriate, i.e., their minds are made up for them by the Vatican, thus they cannot be first rate thinkers.

--Mark

 

Clarifying the Question

By Eduardo Penalver

I'm not sure I'd say a different standard should apply to anyone.  I guess I'm just saying that I wonder how the fact that Catholic scholarship is supposed (at least on one view) to be subservient to authority affects its credibility.  Imagine that someone proposes an argument because it is the best argument that coheres with orthodoxy.  And I, as a Catholic legal theorist commenting on the argument, accept the argument just because it is the best argument that coheres with orthodoxy.  Assuming that neither the original author nor I was ever willing to consider rejecting the argument (because it is the best argument in support of the orthodox position), you could see how, over time, our conversation might become more and more marginal, particularly as to people who did not much care what the orthodox position is, but perhaps even (to a lesser degree) as to people who care but for whom orthodoxy has less overriding importance. 

I think this whole line of thought may reflect a bias on my part against a particular conception of the role of authority in intellectual life, a bias which may not be justified.  After all, an argument is an argument, no matter why it is proposed, and the argument can and should just be evaluated on its own merits.  But, to answer Fr. Araujo's question, I think the observation I made would be true of any scholar I had reason to believe was making an argument just because it cohered with (some) orthodoxy and not because she thought it was correct.  Perhaps, then, my question is what, in evaluating a piece of scholarship or an argument, the relevance is (or should be) of the scholar's subjective motivation in putting the argument forward.  The correct answer may be "none."  But it strikes me as an interesting question, so I'm curious what others think.

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