Larry Solum highlights, in his "Legal Theory Bookworm" feature, the new book by Linda McClain, "The Place of Families: Fostering Equality, Capacity, and Responsibility." Here is a description:
In this bold new book, Linda McClain offers a liberal and feminist theory of the relationships between family life and politics--a topic dominated by conservative thinkers. McClain agrees that stable family lives are vital to forming persons into capable, responsible, self-governing citizens. But what are the public values at stake when we think about families, and what sorts of families should government recognize and promote?
Arguing that family life helps create the virtues and character required for citizenship, McClain shows that the connection between family self-government and democratic self-government does not require the deep-laid gender inequality that has historically accompanied it. Examining controversial issues in family law and policy--among them, the governmental promotion of heterosexual marriage and the denial of marriage to same-sex couples, the regulation of family life through welfare policy, and constitutional rights to reproductive freedom--McClain argues for a political theory of the family that embraces equality, defends rights as facilitating responsibility, and supports families in ways that respect men's and women's capacities for self-government.
(Here, by the way, is an interesting debate that McClain had, with Mary Shanley, as part of the Legal Affairs "Debate Club," about whether "the state should abolish marriage.")
McClain believes, among other things that the "government should give more robust economic and social supports to families, reflecting society's interest in helping children grow into capable, responsible members of society and good citizens."
Interestingly, the late Pope seems to have agreed:
"[T]he State cannot and must not take away from families the functions that they can just as well perform on their own or in free associations; instead it must positively favor and encourage as far as possible responsible initiative by families. In the conviction that the good of the family is an indispensable and essential value of the civil community, the public authorities must do everything possible to ensure that families have all those aids- economic, social, educational, political and cultural assistance-that they need in order to face all their responsibilities in a human way."
McClain's book gathers together and integrates interesting work she has been doing, over several years, on the role of civil-society institutions in constituting both autonomous persons and good citizens. Here, for example, is a quote from an earlier article, "The Domain of Civic Virtue in a Good Society:Families, Schools, and Sex Equality," 76 Fordham L. Rev. 1617 (2001):
[G]overnment should pursue a formative project to foster the capacities for self-government, both in the sense of democratic self-government and personal self-government, and that the institutions of civil society also have a proper role to play in fostering such capacities.As a matter of constitutional interpretation, I believe that our constitutional order presupposes that citizens possess the capacities for democratic and personal self-government; its scheme of basic rights and liberties serves to foster and protect the exercise of such capacities. The Constitution permits and depends upon, if not authorizes or even requires, a formative project, even as it places certain limits upon its pursuit.
In any event, McClain's work strikes me as important, and worth engaging.
Or, we could say (something like) "families are -- in addition to being communities of persons united by love -- important mediating institutions that, like other such institutions play a crucial checking function on the state and its ambitions, and they provide ideological competition for the state and majoritarian values." (We could also say other things, I realize). Put differently, we could emphasize (in McClain's words) the "formative project" that the Constitution purportedly "permits and depends upon, if not authorizes or even requires"; or, we could instead emphasize the "constraints" that the Constitution (and political theory, and religious freedom, and morality) might place on any such project. I
It seems to me that we can go (at least) two ways, after we observe and agree that families are (among other things) institutions that, like mediating associations of other kinds, help to form persons and to construct the scaffolding of civil society (for more thoughts of mine on this, see, e.g., thesetwo articles): We can say, on the one hand, "yes, families are important, and they do important work in which the public authority has an interest, and so they can and should be regulated in order to ensure that they are constructed and ordered in ways that reflect our public values and that they produce the 'outputs' -- i.e., autonomous, other-regarding persons -- that we want."
Take a look at this essay by MOJ-ers John Breen and Michael Scaperlanda, "Never Get Out'a the Boat": Stenberg v. Carhart and the Future of American Law.
In this short essay, the haunting scenes from the film Apocalypse Now serve as the backdrop for an examination of Stenberg v. Carhart and the meaning that this case holds for the future of American law.
The movie tells the story of Captain Benjamin Willard, a special forces officer in Vietnam who travels up-river on a patrol boat in search of a renegade American colonel whom Willard has been ordered to "terminate." The major thematic concerns of the film are morality, violence, candor, and the tenuous nature of civilization. Indeed, life on board the boat, such as it is, represents civilization. This contrasts with the jungle, which represents the absence of the moral order that makes social life possible. This absence allows for the exercise of freedom without judgment. Thus, in one scene, the viewer is warned that you should "never get out'a the boat" unless you are prepared to "go all the way."
In the essay, we argue that in Stenberg v.Carhart the Supreme Court "got out'a the boat" and went "all the way." Stenberg held that a state may not ban the procedure commonly known as partial birth abortion. Stated more bluntly, the Court held that the protection of the law does not extend to a child in the process of being born. Incredibly, the humanity of the victim of this procedure is never addressed in the Court's opinion. Here the Stenberg majority differs significantly from the Court in Roe v. Wade, which appeared to struggle with "the difficult question of when life begins." In Stenberg, the Court knows that the life at issue has already begun. Indeed, it is in the process of being born. By licensing the brutal killing of what is undeniably an innocent human being, the Court turns its back on civilization and marches proudly into the jungle.
Plainly, law is an essential component of authentic civilization. Law as such must embody the principle of equal concern and respect for every human being and the principle of ordered liberty. The essay provides examples of how, since the adoption of the 14th Amendment, these principles have been at the heart of American constitutional law. We argue that, with Stenberg, the Court has abandoned the concept of ordered liberty in favor of the concept of liberty as license. Moreover, in adopting what it believes is a maximal conception of human freedom, the Court has undermined the very notion of equal concern and respect. Here we contrast the abortion license with the Court's treatment of the right to free speech as well as its decisions concerning capital punishment.
We conclude the piece by arguing that if the Court truly believes that the benefits of constitutional personhood do not extend to a child in the process of being born, then it is incumbent on the Court to explain why this is so. Indeed, the rule of law demands that the Court explain its now unspoken criteria for constitutional personhood. The piece is especially timely given that three decisions striking down the recent federal ban on partial birth abortion are now making their way to the Supreme Court. Thus, the Court is once again faced with the choice of embracing authentic civilization or promoting barbarism under the appearance of law.
This is powerful stuff. I hope that the piece gets a wide reading, and an appropriate placement for publication. Law review editors: Keep an eye out for it!
Here, thanks to Larry Solum, is a new paper by Professor Mitchell Berman, "Lesser Evils and Justifications: A Less Close Look." Here is the abstract:
This contribution to a symposium issue on justification and excuse in the criminal law comments on an article by Larry Alexander that raises a host of important and challenging questions about that paradigmatic justification known both as the “lesser evils” defense and as the defense of necessity. Most centrally, it identifies three conceptions of the justificatory class of defenses: (1) that a justification simply reflects a permission - extended for whatever reason - to do what the criminal law otherwise forbids; (2) that a justification applies to conduct that realizes a lesser evil, or avoids a greater evil, than would have occurred had the defendant complied with the law; and (3) that a defense is a justification if and only if the conduct to which it applies may be aided by a third party. Although the first view - the “permission” conception - will likely strike many readers as common wisdom, Alexander’s own ruminations about the proper shape of the necessity defense are actually premised on the second and third conceptions. This essay defends the permission conception of justifications against its competitors and teases out implications of this conception for the way that the necessity defense should accommodate defendants’ actual beliefs and motivations.
Like Patrick, I am very interested in and have been reflecting on Bishop Gumbleton’s recent statement on his past abuse and his advocacy before state legislatures. These are two distinct subjects. I share Patrick’s concerns about what happened to the young Thomas Gumbleton and the approach the young Thomas Gumbleton pursued—getting on with his life. For members of a community of lawyers, educators, citizens, and faithful (MOJ contributors and readers included), there are some other important issues with significant implications for the future that come out of his political advocacy. There are three points (surely there are more) that I would like to raise at this stage. My first point renews concerns I made in an earlier posting about changing statutes of limitations for abuse cases. If statutes are suspended or changed to address a particular issue, a number of grave legal problems will surface. Just to mention a few, they could include: discrimination; equal protection denial; and ex post facto matters. Moreover, anyone interested in and mindful of the justification for statutes of limitations should be concerned with the implications of the bishop’s advocacy. A second point brings up the question about what are the other activities that the bishop is pursuing to help the Church—his flock—with the new cases that may be filed if his advocacy results in the suspension or repeal of statues of limitations. By itself, the bishop’s activity does little to help the larger Church, universal and local. A shepherd has a duty to protect his flock—all members of his flock who have done no wrong. A third point pertains to Church governance. The bishop is a member of the college of bishops, and I would like to know more about how and when he discussed his advocacy plans with his fellow bishops, including the archbishop he assists. This point brings up a related matter, and it deals with how he discussed his legislative activities with the faithful to whom he ministers.RJA sj
Pope Benedict XVI's Message for the World Day of Peace 2006 is available here. I'm struck by the interesting -- and, I think, important -- connection the Pope identifies and explains between a just peace and the truth about the human person. (The Message's theme is "in truth, peace.") Here is a taste:
The theme chosen for this year's reflection—In truth, peace — expresses the conviction that wherever and whenever men and women are enlightened by the splendour of truth, they naturally set out on the path of peace. The Pastoral ConstitutionGaudium et Spes, promulgated forty years ago at the conclusion of the Second Vatican Council, stated that mankind will not succeed in ''building a truly more human world for everyone, everywhere on earth, unless all people are renewed in spirit and converted to the truth of peace''.(2) But what do those words, ''the truth of peace'', really mean? To respond adequately to this question, we must realize that peace cannot be reduced to the simple absence of armed conflict, but needs to be understood as ''the fruit of an order which has been planted in human society by its divine Founder'', an order ''which must be brought about by humanity in its thirst for ever more perfect justice''.(3) As the result of an order planned and willed by the love of God, peace has an intrinsic and invincible truth of its own, and corresponds ''to an irrepressible yearning and hope dwelling within us''.(4)
4. Seen in this way, peace appears as a heavenly gift and a divine grace which demands at every level the exercise of the highest responsibility: that of conforming human history—in truth, justice, freedom and love—to the divine order. Whenever there is a loss of fidelity to the transcendent order, and a loss of respect for that ''grammar'' of dialogue which is the universal moral law written on human hearts,(5) whenever the integral development of the person and the protection of his fundamental rights are hindered or denied, whenever countless people are forced to endure intolerable injustices and inequalities, how can we hope that the good of peace will be realized? The essential elements which make up the truth of that good are missing. Saint Augustine described peace as tranquillitas ordinis,(6) the tranquillity of order. By this, he meant a situation which ultimately enables the truth about man to be fully respected and realized.
An intermediate appellate court today rejected (by a 3-2 vote) the arguments by Catholic Charities of Albany that New York's law mandating that it provide coverage for contraceptives violated its constitutional rights. This ruling, here, is consistent with the California Supreme Court's ruling in a similar case. Susan Stabile's article on this topic was cited by both the majority and the dissent.
A volume just published by the Linacre Center, Cooperation, Complicity & Conscience (Helen Watt ed. 2005), contains a discussion of the moral and legal issues raised by this case. My contribution to the volume deals with US law and conscientious objection in health care. Information about how to obtain the volume is available on the Linacre Center's website.
My colleague Elizabeth Brown takes issue with my subsidiarity-driven endorsement of New Orleans' plan to allow residents to redevelop in any area of the city for a period of one year, subject to the city's right to close down sections that don't achieve a critical mass of redevelopment:
If the residents were assuming ALL of the costs for bringing back their neighborhoods, it would be a legitimate plan. The principle of subsidiarity holds that nothing should be done by a larger and more complex organization which can be done as well by a smaller and simpler organization. Subsidiarity only works when those at the local level not only have information about their own wants and needs but the means to implement their decisions when freed from top down constraints. That is not the case in New Orleans.
Unfortunately, citizens who build in flood plains (and the entire Ninth Ward is a flood plain) do not bear the entire costs for locating their homes and businesses there. The cost of the levies which have been constructed and maintained by the Army Corps of Engineers is borne by a much wider group than the impoverished residents of the Ninth Ward. It is borne by you and me and a significant portion of the population outside of Louisiana. To build levies that could withstand a Level 5 Hurricane, which would be necessary to prevent the area from flooding again, would cost billions of dollars. It would be better to compensate the residents by buying their land now and having them resettle elsewhere than to continue to subsidize their precarious existence in the Ninth Ward.
My father, who served in the Army Corps of Engineers for 27 years and worked at the Waterways Experiment Station where the Corps attempts to devise plans to control the flooding of the Mississippi, frequently commented that it would be better for society if politicians stopped allowing people to build in flood plains because the costs of disaster relief when the inevitable flooding occurred and the costs of rebuilding was not borne by the people who lived there and that the benefits (a beautiful river view, flat land for farming, relatively cheap land for housing (as in the Ninth Ward), etc.), which were concentrated in the hands of few, did not exceed the costs.
The plan as outlined in the New York Times actually seems cruel because people could squander their funds trying to rebuild only to have the city close the area after a year. I can guarantee you that the city will spend less compensating them a year from now than they would have to pay now. If they had to buy out the residents today, the residents would have a decent argument that they should be paid the pre-Katrina value of the land now in order to prevent them from trying to rebuild. If the city waits a year and then condemns the land after the residents have either abandoned it or failed to make a go of it, then the city will have to pay only then current value of the land, which would be considerably less then the pre-Katrina value.
These are all valid and valuable points, but I think subsidiarity would caution us against a straightforward cost-benefit analysis in this context, or at least encourage us to build into the cost side of the equation the cultural cost incurred by the Ninth Ward's demise. The Ninth Ward became culturally distinct, at least in part, because of our society's persistent disregard of poor blacks. This disregard may be exacerbated by ignoring the neighborhood's cultural distinctiveness and historical meaning -- we can't just bulldoze the community and scatter its inhabitants to the wind, government checks in hand. Or at a minimum, we need to consider the loss of meaningful community that accompanies the physical destruction of a place, keeping in mind that lives unfold and relationships are built in neighborhoods that are by no means fungible.
Notre Dame's John O'Callaghan e-mails in criticism of Wheaton College's dismissal of Joshua Hochschild, and in response to my account of what Wheaton's arguments might be:
On the questions you raise: A) no doubt Wheaton College should be given deference on many of the things it believes. But I don't think it should be given deference on what it believes Roman Catholics believe. Many Protestants believe that Catholics worship Mary. But surely we should not give deference to them on that. Nor should we give them deference in claiming that we do not believe any of the statements they list in their Statement of Faith.
B) Josh Hochschild was asked whether he could sign the statement put before him, not statements of any number of beliefs held by members of Wheaton that are not expressed in that statement. I imagine one reason Wheaton does not try to put all of the things its members believe into the Statement of Faith, is that beyond what is explicitly in it, they probably cannot achieve any kind of uniformity on what to include. If they included more, they might have to fire more than they do.
C) Logically, one can maintain that Holy Scripture is the "supreme and final authority in all that [it] say[s]" without also maintaining that it is the supreme and final authority in all that it does not say, that is, in all that the Word of God says. Catholics believe that more is said in the Word of God than only Holy Scripture. But, Wheaton's Statement of Faith does not exclude that, even if many of its members may believe that it ought to be excluded. Again, if they put that in, I suspect they would have to fire some more faculty. And in any case, the authority of the Church is not above the Word of God, whatever it says.
Finally, D) on what the WSJ reports Josh as saying, I think he was making an analogy of proportionality, like 2-is-to-3 as 4-is-to-6. But in such an analogy one is not committed to the claim that 2=4 or 3=6. One may clam that Protestants may turn to their pastors as authorities the way Catholics turn to the magisterium of the RC church, without anyone claiming that the authority of their pastors is the kind of authority possessed by the magisterium of the RC church.
Bishop Gumbleton has spoken. Assuming arguendo that what His Excellency reports about what happened to him is true, we all have reason to be grateful that, through grace, he overcame the harm and went on to do so much good. This is a very serious matter, obviously. Am I wrong, then, in thinking that "It could cost the church some money" is not something a successor to the apostles should say in the context of advocating an expansion of civil statutes of limitations for abuse claims? "The church" will pay. It's not His Excellency's parish that may be closed and then sold to pay the price of the episcopal negligence, etc. Where will the Masses be celebrated and the confessions heard, Your Excellency? I don't doubt that the litigation bills are raising episcopal consciousness; I do doubt and even deny that it's good for the Church for a bishop (publicly) to translate the shrinkage of parish life into terms that would satisfy Justice Holmes.
Scot McKnight, author of an article about the evangelical-Catholic conversion phenomenon titled, From Wheaton to Rome, chimes in on the Wheaton College controversy:
Is the Roman Catholic commitment to the authority of the Church tradition inconsistent with [Wheaton's faith] statement? I think not.
Here’s what many of us would also say: what Wheaton is actually doing is not claiming the authority of Scripture over against the dual authority of Scripture and Tradition, but affirming one tradition’s interpretation of Scripture over against another (the RC one). In other words, it is saying “evangelicals are not Roman Catholics.” It wants to define evangelical in such a way that it affirms the five hundred year-old debate that has separated them: evangelicals are not Catholics.
There is no reason here to get into protracted debates that have occupied theologians for five hundred years. Wheaton has the right to do what it did; I doubt myself that it is as clear-cut as the newspaper article’s representation makes it. My understanding is that the Tradition of Roman Catholicism is not an equal authority but the divinely-blessed carrying on of that biblical authority.
And over at First Things, Joseph Bottum brings a different perspective:
The problem, really, is the difficulty in crafting a faith statement that can be signed by every Protestant—from the highest of high-church Anglicans to the lowest of low-church fundamentalists—but can’t be signed by any Catholic. In the end, all such things are likely to run on a wink and prayer, which says a great deal about the incoherence of some Christian disunity. And the whole thing is sadly hard on Professor Hochschild, who has suffered a pay cut to teach at a Catholic school, and only because he has taken a principled stand on questions of faith—which is the exactly the lesson schools like Wheaton hope to teach.
And yet, principled stands are supposed to cost something; otherwise, they’re not stands but merely poses. In the end, Wheaton is, I think, to be applauded for trying to prevent the decline of religious identity . . . .
Getting rid of a serious, principled, and popular medieval philosophy professor is a sad example of the cost of Christian divisions, against which we pray ut unim sint: that they may be one. But until those divisions are healed, the shared Catholic and Protestant struggle to maintain religious identity in a secularized culture will occasionally create such disturbing incidents. If Catholics are concerned—as they ought to be—about the Catholic identity of their own colleges and universities, then they must accept the right and even duty of Protestant schools to maintain a Protestant character.
Rob
UPDATE: Here are two statements by Wheaton College president Duane Litfin (offered in 1998 and 2004) explaining the no-Catholic policy in more detail.
