I very much appreciate the sentiment that motivated Rob's moving post, but I would point out that there are pressing moral issues that people with the training we have need to be thinking about RIGHT NOW. For example, in an otherwise sterling column, the usually sensible Peggy Noonan called for shooting looters on sight. Somebody somewhere soon is probably going to have make that very call, given the way things are heading down in New Orleans. Would it be morally licit to do so?
I honestly don't know what the right answer is. On the one hand, as I understand Catholic doctrine, it is morally licit for a soldier fighting a just war to kill. On the other hand, as I understand Catholic doctrine, while the death penalty has not been per se deemed morally illicit, recent Church teaching has been trending in that direction and, in any event, makes clear that there are very few cases in which it can be justified. For a police officer or National Guardsman to shoot armed looters, especially in self-defense or defense of others, strikes me as clearly being more closely analogous to the former. On the other hand, for a police officer or National Guardsman to shoot unarmed looters in defense of property looks more like an extra-judicial execution.
Usually when a natural disaster hits, I find myself effectively intellectualizing the tragedy, focusing on big-picture issues that call for problem-solving or logical analysis, rather than the person-by-person anguish that has unfolded. So when the tsunami hit in December, I focused on the theological implications, which make for fantastic and important debate, but can sometimes distance us from the ground-level reality. That changed a couple of weeks later when we learned that a close friend of my wife's from college had been swept away by the tsunami in Thailand. The debate suddenly became less vital to me.
There was no chance of intellectualizing Katrina. As a graduate of the University of New Orleans, for four years I lived steps away from Lake Pontchartrain, and still have many good friends in the city. So the impact of Katrina, for me, is not captured by the panoramic scenes of flooding, the gambling barges tossed onto buildings in Mississippi, the skyrocketing gas prices, or even the law students with their futures in limbo. I think of my friends Chuck and Becky, of their beautiful but now uninhabitable home near the lake, and of the fear and confusion faced by their young kids. I also think of their deep family roots in New Orleans, and of sunny February mornings during college standing in the front yard of Becky's childhood home as the Mardi Gras parades went by, a home that is now almost certainly underwater.
I might be speaking for myself (but I doubt it) when I confess that lawyers, and especially law professors, are very adept at using our minds to detach ourselves from suffering. Indeed, I catch myself unconsciously teaching my Torts students to do the same thing as I gloss over (or worse yet, make a joke of) the horrific suffering of plaintiffs that fills our casebook, recasting it without even skipping a beat as a problem to be solved through the application of legal reasoning. I hope that I can teach myself, as well as my students, to make sure that I don't even think about solving someone's problems until I've come alongside and mourned their loss.
Hugh Hewitt suggests that we "adopt a parish" that has been affected by Katrina. I appreciate the sentiment. As a Catholic, however, I am only going to contribute to national religious charities. Why? Because of the decision recently reached by the judge supervising the Diocese of Spokane's bankruptcy case (Spokane declared bankruptcy because the diocese can't pay all the legal claims arising out of the priest abuse scandal.) Here's a news summary of the holding:
U.S. Bankruptcy Judge Patricia Williams of Spokane ruled Aug. 26 that civil property laws prevail in a bankruptcy proceeding despite any internal church laws that might bar a bishop from full control over parish assets. Diocesan lawyers had argued that in church law parish assets belong to the parish itself, not to its pastor or to the bishop. They said that, while the diocesan bishop was nominally the owner in civil law, even in civil law he only held those properties in trust for the parishes themselves. ...
Last December the Spokane Diocese filed for bankruptcy protection under Chapter 11 of the federal Bankruptcy Act, citing $11.1 million in assets and $83.1 million in liabilities, mostly from people seeking recompense for childhood sexual abuse by priests. It did not include parishes, parish schools or cemeteries in its list of assets.
Victims' lawyers claimed that the bishop had more than $80 million in assets under his control if he included the diocese's 82 parishes, 16 diocesan and parochial schools, and various cemeteries and other properties that he claimed he held only in trust. {Ed: What exactly do the lawyers want to with the [expletive deleted] cemeteries? Dig up the bodies and sell the land?}
Stockton attorney Larry Drivon, who represents hundreds of Californians suing the Catholic Church over childhood sexual abuse, said the Spokane ruling sends a warning to other Catholic dioceses considering bankruptcy to avoid payment of multimillion-dollar jury verdicts in sex-abuse cases. "They are not going to get anywhere in bankruptcy," he said. "This is exactly what we've been saying since Day One, that all of the Catholic assets within the diocese are available to pay these plaintiffs," Drivon said.
Drivon said the ruling also meant that money held in restricted funds within dioceses for special projects, such as construction of a cathedral, can be used to pay judgments in sex-abuse cases, contradicting what some church officials have told donors. "They have told their parishioners, 'Don't worry about the funds that you gave us for the cathedral, because these funds are separate and cannot be used for lawsuits.' Well, they can," Drivon said.
In other words, giving money to a specific parish these days for a specific purpose like Katrina relief is no longer safe from the claims of sex abuse litigants. I firmly believe that the Church needs to compensate the victims of priestly sex abuse, but I also don't want money I give to hurricane relief being diverted to other purposes.
The Census Bureau released figures yesterday showing that the number of Americans living in poverty last year increased by 1.1 million to 37 million. Of the 37 million, almost one third are children. (The figures also show that the number of Americans without health insurance increased to 45.8 million.)
In Sollicitudo rei socialis, Pope John Paul II called the option for the poor "a special form of primacy in the exercise of Christian charity, to which the whole tradition of the Church bears witness....[T]his love of preference for the poor, and the decisions which it inspires in us, cannot but embrace the immense multitudes of the hungry, the needy, the homeless, those without medical care and, above all, those without hope of a better future. It is impossible not to take into account the existence of these realities. To ignore them would mean becoming like the 'rich man' who pretended not to know the beggar Lazarus lying at his gates." He goes one to say that both our daily life and "our decisions in the political and economic fields must be marked by these realities." (par. 42)
I suppose this is a bit off topic, but I hope all MOJ readers will pray for, and financially support, those who are suffering because of the Katrina disaster. If, as it increasingly appears, New Orleans as we have known it is gone, it is a tragedy for residents and their friends and loved ones, but also for the country, and for the Church. New Orleans was -- though I persist in hoping it will remain -- a different place, in a culture, geography, and economy that (it seems to me) has been becoming more and more the same (not bad, just the same). New Orleans is a reminder -- particularly if one scraped beneath the Bourbon Street stuff -- that not everything is Underground Atlanta, Universal Studios, the new Times Square, Tison's Corner, or Pier 49. Grime, moss, mold . . . God bless it.
The comments section of what started out as a light-hearted self-congratulatory post over at my personal blog has morphed into a serious discussion of the moral obligations of Catholic judges, with direct reference to SCOTUS nominee John Roberts. With Roberts' confirmation hearings looming, consider this an invitation for any MOJ bloggers (or readers) to come over and weigh in with comments.
This article, by Ave Maria's Prof. Lee Strang, should be of interest to those who have been following our discussion about Catholic judges, stare decisis, and cooperation with evil. Here is the abstract for "An Originalist Theory of Precedent."
There is substantial scholarly disagreement on whether and in what manner prior decisions of the United States Supreme Court interpreting the Constitution bind it later in time. This is despite the consensus of American legal practice that prior constitutional decisions do bind later courts. At the heart of the debate surrounding precedent is the tension between our written Constitution, which is the supreme law of the land, and the role of the unelected Supreme Court in exercising constitutional judicial review. Further, the existence of numerous and important nonoriginalist precedents is used by critics of originalism as an (in their view, often decisive) argument against originalism.
In this Article I will offer a theory of constitutional precedent within an originalist framework. I will argue that a limited respect is due some nonoriginalist constitutional precedent because of the larger societal goal of effectively pursuing the common good.
I will initially describe the problem that precedent has posed for scholars and courts in the area of constitutional adjudication. First, I will explain what I mean by a theory of precedent. Second, I will briefly discuss the debate over the proper interpretative methodology of the Constitution. Third, I will show how, for any plausible theory of constitutional interpretation, there will be precedents that, under the methodology, are mistakes. Lastly, I will review attempts by originalist scholars to elucidate a theory of precedent in constitutional adjudication.
I will then lay out my theory of originalist precedent. First, I will describe the originalist interpretative methodology I am assuming for purposes of this Article. Central to the originalist methodology that I describe are the concepts of the common good and authority, and the process of making natural law effective in society. Then, I will argue that courts should not overrule nonoriginalist constitutional precedent only when overruling the precedent would gravely harm society's pursuit of the common good.
Originalism requires judges to adhere to the meaning of the text of the Constitution as it was understood when ratified. In constitutional adjudication, therefore, judges may only apply the positive law of the Constitution and may not, generally, directly apply natural law norms. By contrast, when determining whether to overrule or limit nonoriginalist precedent judges will be relatively unconstrained and will have to make those determinations by looking to what the common good of society requires. As a result, I will briefly discuss a theory of judicial virtue to account for how judges should exercise this discretion.
With Labor Day one week away, the current issue of America includes an article entitled, "Do Catholics Still Care About Labor? The article concludes they do, giving examples of some grass roots efforts to support workers. I'm not sure that is enough to give a full answer to the question and it is a question worth asking.
Catholic Social Teaching on labor is quite clear and strong, yet the teaching gets remarkably little emphasis. In 1891 Pope Leo XII wrote in Rerum Novarum that "some opportune remedy... [must] be found quickly for the misery and wretchedness pressing so justly on the majority of the working class." In 2005, companies in the U.S. still engage in violation of child labor laws and actively oppose unionization efforts, most new jobs being created are paying poverty level wages, and day laborers and undocumented workers are abused in a myriad of ways (just to provide a few examples in the U.S. - not even reaching the issue of workers in foreign countries). Shouldn't we be hearing a louder Catholic outcry and demand that "some opportune remedy...be found quickly"?
I've just finished reading Amy Gutmann's Democratic Education, and while I find myself resisting several of the book's assertions, I've had trouble articulating a response to one of the passages. Here it is:
Many public schools in the mind-nineteenth century were, to say the least, disrespectful of Catholicism. Catholic children who attended these schools were often humiliated, sometimes whipped for refusing to read the King James version of the Bible. Imagine that instead of becoming more respectful, public schools had been abolished, and states had subsidized parents to send their children to the private school of their choice. Protestant parents would have sent their children to Protestant schools, Catholic parents to Catholic schools. The Protestant majority would have continued to educate their children to be disrespectful if not intolerant of Catholics. The religious prejudices of Protestant parents would have been visited on their children, and the social, economic, and political effects of those prejudices would have persisted, probably with considerably less public protest, to this very day. There may be little reason today for Catholic parents to worry that privatizing schools will reinstitutionalize bigotry against Catholics, at least in the short run. But one reason that Catholics need not worry is that [a school system built on parental choice] today would be built on the moral capital created over almost a century by a public school system.
My questions for Rick, Tom, Patrick, Michael S., and others who have written or thought about the importance of Catholic schooling and/or school choice: Do you agree that, as public schools became more tolerant of minority views, they played an essential role in reducing tension and increasing understanding between Catholics and Protestants? If so, would you still advocate for school choice if you were writing in the nineteenth century, or is your support for school choice premised, at least in part, on the availability of the "moral capital" created by public schooling?
