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.

Monday, June 6, 2005

More on Subsidiarity and Congressional Power

A couple of thoughts to follow Rick's and Rob's comments on subsidiarity and the medical marijuana decision:

1.  When I teach federalism to Constitutional Law students, I also have them read materials on subsidiarity (including excerpts from Rob's terrific "Subsidiarity as a Princple of Governance," posted over on the right).  But I emphasize, like Rick did in his post, that the contours of congressional power and the principles of subsidiarity are two different things.  Whether a given action comports with subsidiarity turns in significant part on the policy wisdom or necessity of the action -- in particular, whether the issue requires a higher-level as opposed to local solution.  By contrast, the constitutional question -- as Raich reaffirms -- is "not whether it is wise to enforce the statute in these circumstances; rather, it is whether Congress' power to regulate interstate market[s] . . . encompasses the portions of those markets that are . . . produced and consumed locally."  That's from the Raich majority opinion, page 6.  Power, not wisdom, is the constitutional question; Congress can have power even if it overreaches or acts unwisely.  The courts' general reluctance, or impotence, to judge the wisdom of statutes may also make them reluctant or impotent to do much with notions of subsidiarity.

2.  Well, let's qualify that.  Actually there might be a significant overlap between subsidiarity and the kind of commerce-power inquiry involved in a case like Raich, where the issue is -- or can be seen as -- whether local activity (home growing medical marijuana) will have effects outside the locality (effects on the supply and price of illicit marijuana in national markets).  When there is such an effect, then subsidiarity probably will allow the higher-level regulation -- on the ground that localities alone can't address the issue because each will be frustrated by the effects coming in from other localities.  And constitutional doctrine will also allow federal regulation, under the theory of "aggregating local activities" bolstered by the power of Congress to make laws "necessary and proper" (Art. I, section 8, cl. 18) to the execution of its other powers such as regulating interstate commerce.  So maybe subsidiarity and constitutional federalism do parallel each other, at least when the issue colorably involves "commerce" and thus Congress's commerce-regulating power.

Except that there remains a question of how confident we have to be about such a cross-locality (i.e. interstate) effect in order to justify higher-level (congressional) regulation.  Here's what Raich says about that (majotity opinion, page 19):

In assessing the scope of Congress's authority under the Commerce Clause, we stress that the task before us is a modest one. We need not determine whether respondents' activities, taken in the aggregate, substantially affect interstate commerce in fact, but only whether a rational basis exists for so concluding.

In other words, judicial deference and "modest[y]" apply not only to the policy wisdom of the statute in general, but to the question whether local activities (aggregated as a class if need be) will have an interstate effect (i.e. on interstate commerce).  Can such a deferential approach to that question be squared with subsidiarity?  I would have thought that before local regulation is superseded, subsidiarity would require some level of proof that local activities will have interstate effects -- not just that it be "rational" to think that such effects will occur.

The precise standard may not matter in Raich, because both the majority and Justice Scalia (concurring) argue that it's not just plausible, but very likely, that home-grown medical marijuana, as a "fungible" commodity, will seep into the national, interstate market.  On the other hand, Justices O'Connor and Thomas, in dissent, argue that these effects hadn't been proven:  Thomas, for example, says that there's been no showing "that California’s controls [on non-medical uses or disposition of medically prescribed marijuana] are ineffective."  So the difference between "a rational basis for expecting an interstate effect" and "proof of a likely interstate effect" may be important to the case -- and to other Commerce Power cases as well.

Tom B.

Religious Freedom: What's at Stake (and what's not)

Here is a short, informative essay by law professor and Religion Clause expert Carl Esbeck, "Church-State Relations in America:  What's at Stake, and What's Not":

It seems religious freedom has become an object of perpetual litigation. As a consequence, the struggle over church-state relations is vulnerable to a high level of crisis-mongering-especially in those ubiquitous fund-raising appeals. It is difficult to sort out real threats from mere shadows, and even harder to know where best to invest one's time and other resources for the long term. Although few people have been as free to practice their religion as present-day Americans, there are still crucial jurisprudential matters at stake. These matters get elbowed into the background when the spotlight is thrown on hot-button issues such as eliminating "under God" from the Pledge of Allegiance or removing the Ten Commandments from a courthouse lawn.

In this article I identify those truly important issues that, in my judgment, will prove crucial to securing religious freedom well into mid century. I will close with two highly emotional issues of mere superficial importance-except that they rile the masses and cause them to reach for their checkbooks to finance the wrong battles in the culture war.

Rick

A HUMAN RIGHT TO RELIGIOUS FREEDOM?

Some MOJ readers may be interested in a paper I've just posted to SSRN.  The abstract--and a link to the paper--are below.

A Right to Religious Freedom? The Universality of Human Rights, the Relativity of Culture

Abstract:  This Essay is the basis of a presentation I made to a symposium on religious freedom at the Roger Williams University School of Law in October 2004. I inquire, in the Essay, whether we who affirm (what I call) the morality of human rights should want the international law of human rights to protect a right to religious freedom. Along the way, I offer some reflections on the relevance of cultural relativity to the project of universalizing human-rights-claims.

For a copy of the paper, click here and then click on one of the dowload icons at the bottom o the page.
_______________

Michael P.

Mirror of Justice . . . pass it on

Mirror of Justice is, I think, a success, in the sense that (a) we bloggers have learned a lot from each other and (b) hundreds of people read it each day.  We have not, however, followed the lead of some other blogs and solicited money from readers.  (Nor will we).  So, instead of that, how about this:  Would MOJ readers consider passing on, perhaps via e-mail, the "word" about MOJ to, say, two friends or colleagues who might be interested?  Call it the "New Evangelization." 

Rick

Subsidiarity and Medical Marijuana

I tend to read the Constitution in a way that takes seriously the idea of enumerated -- and therefore limited -- powers.  Accordingly, I tend to frame "federalism" cases in terms of the presence (or absence) of constitutional authorization for the federal action in question, and less in terms of "states' rights."  (It is fascinating, for me, to see the Court's two leading "originalists" -- Justice Scalia and Thomas -- dividing on this case.  If nothing else, the case is a welcome reminder to journalists, law students, and scholars that the Court, the Justices, and constitutional philosophy are more complicated than "activist" and "strict constructionist", or "living Constitution" v. "traditionalist.").  So -- responding briefly to Rob's post -- the constitutional question for me is (primarily), "Does Congress have the power to criminalize possession and use of marijuana, grown in-state, even for medicinal purposes?"  (And, if the answer is yes, is there anything that requires Congress to exempt the conduct at issue here?)  This is (for me) a difficult question. 

Turning to the matter of Catholic Social Thought, though, it strikes me that "subsidiarity" cuts both ways.  (I'm playing the Devil's Advocate here, because I think my preferences and intuitions line up with Rob here).  If one believes that the regulation of certain drugs is a wise public policy, then one could certainly conclude -- invoking subsidiarity -- that a national strategy (one that is intolerant of state-by-state opt-outs) is essential to the policy's success.  (It is hard -- or harder -- for the national government to pursue its policy if it has to negotiate state-by-state opt-outs of various kinds).  Or, if one is agnostic or doubtful about the wisdom of a national drug policy, one could then invoke subsidiarity to defend a particular state's normative determination, or experiment.

Rick   

UPDATE:  Marty Lederman and Tom Goldstein, over at SCOTUSBlog, have assembled an all-star team of scholars and commentators to discuss today's medical-marijuana decision.  And, Larry Solum has a very detailed analysis, here.

Touchstone on "The Bishop of Rome"

The current issue of Touchstone magazine ("A Journal of Mere Christianity") features a number of essays -- most of them by non-Catholic Christians -- about the work and legacy of Pope John Paul II.

Rick

Gonzales v. Raich

If Catholic legal theory has anything to say about the outcome of today's ruling in the medical marijuana case, I assume that it derives from the principle of subsidiarity.  The Supreme Court ruled that the Commerce Clause empowers Congress to trump states' authority to allow the medical use of marijuana.  In dissent, Justice Thomas writes:

[N]either in enacting the [federal statute] nor in defending its application to respondents has the Government offered any obvious reason why banning medical marijuana use is necessary to stem the tide of interstate drug trafficking. Congress's goal of curtailing the interstate drug trade would not plainly be thwarted if it could not apply the CSA to patients like Monson and Raich. That is, unless Congress's aim is really to exercise police power of the sort reserved to the States in order to eliminate even the intrastate possession and use of marijuana.

Is there any interpretation of subsidiarity that would favor giving power to the federal government in this context?  Does a state's approval of the medical use of marijuana represent a breakdown in the proper norms or acceptable outcomes of democratic deliberation so as to favor the higher collective authority stepping in?

Rob

School Choice in the Dock

Tomorrow the Florida Supreme Court hears oral arguments in Bush v. Holmes, which involves the state's program of "Opportunity Scholarships" for students in failing public schools -- providing them scholarships to use at their choice of qualified private schools, secular or religious, or nearby public schools.  Lower courts struck down the program on the ground that including religious schools in it violated the so-called "Blaine Amendment" provision in Florida's Constitution.  The full set of briefs filed in the case (actually three consolidated cases) are here in PDF format (look for docket numbers SC04-2323, SC04-2324, and SC04-2325; most of the briefs overlap all three cases).  The Institute for Justice, a leader in defending school choice in constitutional litigation, has copies of briefs and comments on the case here.  Full disclosure:  co-blogger Rick Garnett and I filed an amicus brief (also available here) defending the Florida program, arguing that excluding otherwise qualified schools from a choice program simply because they are religious or "sectarian" would violate the First Amendment to the U.S.  Constitution.  This is an important case for the principles of (1) parental control over education and (2) governmental neutrality and fairness toward religion.

Tom B.

RG on BOONIN ON ABORTION

Thanks so much to Rick Garnett for his engaging overview of the two-day conference at the University of Portland.

Rick refers, at one point, to "Boonin’s argument that personhood is a function of 'conscious desires.'"  However, there is no such argument in Boonin's book.  (I assume Rick was basing what he said on the speaker's misinterpretation of Boonin's argument--a misinterpretation that makes me think that the speaker's critique of Boonin missed its target.)  In Boonin's argument, "desires" do play a crucial role, but not "conscious" desires.  Instead, the desires that are crucial for Boonin are (1) "ideal" (as distinct from "actual") desires and (2) desires that are "dispositional" (as distinct from "occurent").  I myself criticize and reject Boonin's argument in some recent (unpublished) work on abortion, but that's a story for another time and place.

Michael P.

Report on "Foundations of Freedom" conference

I just returned from the “Foundation of Freedom” conference, held in Portland, Oregon, and co-sponsored by the University of Portland’s new Garaventa Center for Catholic Intellectual Life and American Culture and Notre Dame’s Center for Ethics and Culture.  (Portand is – putting aside its difficulties with euthanasia, heavy-handed land-use regulation, unchurchedness, and clouds – a wonderful and attractive town.) The conference was a stimulating and enjoyable event, and I think the Garaventa Center is going to do important things, and facilitate much-need work and conversations, in the years to come.

The opening lecture was given by the Hon. John T. Noonan, who needs no introduction.  His address, “Transparency in Theology: The Necessary Condition for Catholic Theology,” both re-presented and expanded upon, in an accessible way, his work – including his recent book – on the development of doctrine.  Judge and Mrs. Noonan, by the way, are wonderful people, who were nice enough to stick around for, and participate in, the full two-day conference.

 

The next morning, I attended one of four available programs, Dr. Ralph McInerny’s paper, “Freedom Is Not Enough.” The talk was a real tour de force. I couldn’t help thinking – as Professor McInerny moved from Fr. Dowling to Boswell to Dante to

 

Dostoyevsky to St. Thomas to Sarte to Henry James to Auden – that “they don’t make them like him anymore.” At the heart of the rich talk was a theme that we’ve engaged, time and again on this blog, namely, the meaning and implications of authentic human freedom, which is, he argued, "freedom for," and not just "freedom from."

After a break, I sat in on “A Conversation with the Presidents,” featuring Fr. William Byron, S.J. (a former president of at least three Catholic institutions of higher education); Fr. William Beauchamp, C.S.C., longtime senior administrator at Notre Dame and now president at the University of Portland; and Fr. David Tyson, C.S.C., former president of the University of Portland and now provincial for his religious community. The conversation, at first, was a bit diffuse and tentative, but it eventually found its way to what I regard as a crucial challenge for all those engaged in the project of building and sustaining Catholic institutions, namely, identifying both the nature or “good” of a university and the implications of a university’s status as, or aspiration to be, “Catholic.”

 

After mass and lunch, I presented a paper, “Changing Minds: Evangelism, Proselytism, and Religious Freedom,” in which I try to shed some light on the “proselytism problem” by drawing on themes running through the Supreme Court’s First Amendment decisions and also on the work – particularly Redemptoris mission – of the late Holy Father, John Paul II. As part of the same program, Prof. David Cochran gave a talk, “Catholicism, Pluralism, and Democracy in America" that would have warmed most MOJ hearts, focusing as it did on the claim that true pluralism emerges not from state-enforced indifferentism or hyper-individualism, but from a rich and diverse civil society.  (Cochran is the author of "Catholics, Politics, and Public Policy:  Beyond Left and Right (Orbis 2003)).

There were about a dozen more talks and papers that afternoon, but I elected to go for a few Pacific Northwest beers with MOJ-friend and Notre Dame philosopher John O’Callaghan. Time well spent.

The evening lecture was a treat, given by Notre Dame’s Prof. David Solomon. His paper was called “Doctors, Death, and Democratic Culture.” After getting everyone’s attention by reminding us that “there is a lot of killing going on in medicine today,” he turned to the question why – given that medicine has achieved so much, and attained an amazing ability to alleviate pain and disability – “exclusionary” and other arguments offered in justification of medical killing enjoy such currency today?  Specifically, Solomon explored some "features of liberal democratic cultures that encourage" these arguments (e.g., individualism, shallowness, and secularism).

On Saturday morning, I picked from an long menu of options a careful and helpful presentation by Dr. Christopher Kaczor, a philosopher at Loyola-Los Angeles (and a great dinner companion), on the recent arguments offered by David Boonin in a widely and well reviewed book, “In Defense of Abortion.” Kaczor offered a critique of Boonin’s argument that personhood is a function of “conscious desires.” During the same session, Prof. Jude Huntz presented a paper on “restorative justice.” I respected and appreciated Huntz’s point that we in America tend to rely excessively on incarceration, and also that our prisons and prison programs do little either to rehabilitate offenders or to restore them to or reconcile them with their communities. That said, I thought his claims about “retribution” were unconvincing. Like many who (rightly) are drawn to restorative-justice themes, Huntz seemed to conflate retributive punishment theory with "revenge" or hate-of-criminals. He also moved too quickly, I thought, from Pope John Paul II’s treatment of capital punishment in Evangelium vitae to the claim that Catholic teaching has rejected retribution. In fact, retribution – properly understood – remains the primary justification of, and a permissible purpose for, punishment. Retribution, in the work of the late Pope, remains consistent with the dignity of the human person, and also with the love that is appropriately directed to the person. That said, Huntz was right to remind us that a criminal-justice system informed by Christianity will not settle for punishment that is morally justified, but will do more to insure that punishments are designed and distributed in a way that respects and builds up those who receive and impose them.

 Next, John O’Callaghan got everyone’s attention with his engaging, provocative, and eminently charitable paper, “Voting and Prudence: What’s a Catholic To Do?” MOJ readers are likely familiar with O’Callaghan’s thoughts on this topic, both from the St. Thomas conference on Pro-Life Progressivism, and from various blog posts during the run-up to the 2004 election.  No surprise, the paper prompted lively conversation.

After a latte-and-sightseeing break, I attended a final session, which included a sobering presentation by Dr. Fred Herron, “Consuming Passions: Catholic Education in a Consumer Society.” Herron reminded us that students in Catholic schools are not immune to the contemporary, highly aggressive onslaught of appetite-creating advertising, and urged Catholic parents and schools alike to think about how they ought to respond to, and counter, this onslaught.  (While I’m not sure this was the effect Herron intended, I came away even more in love than ever with my Tivo, which makes it possible for me and my children to skip commercials!)

Finally, Dr. William Hudson, of Providence College, got my blood boiling – but in a good way – with his paper, “President Bush, the Ownership Society, and the Catholic Understanding of the Common Good,” in which he tried to establish that the President’s Ownership Society agenda – e.g., private retirement accounts, health savings accounts, school choice – was (a) unlikely to achieve the goods toward which it purports to aim and (b) that the Agenda, both in theory and in its predicted effects, is contrary to the Catholic Social Teaching principle of solidarity and inconsistent with the preferential option for the poor. His presentation was clear, genial, and engaging, but I came away quite unconvinced. First, it seemed to me (and still does) that Hudson was relying on a not-quite-complete understanding of the Common Good (one that emphasized more the good of the collective, rather than the Gaudium et spes idea of the Common Good as a set of conditions that facilitate and promote the authentic freedom and flourishing of persons) -- see Paolo Carozza's recent essay for a good account -- and also that he downplayed the role of subsidiarity in evaluating the Ownership Society proposals. Second, I thought Hudson shifted back and forth from the claim that (i) Bush’s Owndership Society agenda reflects principles that cannot be reconciled with Catholic Social Teaching, to the (very different) claim that (ii) although perhaps a successful implementation of an Ownership Society agenda – along the lines of, say, Pope Leo XIII and the English distributivists – would be something Catholics could endorse, Bush’s proposals are not likely to succeed. Of course,

Hudson

might be right in his predictive judgment. But such a prediction is very different from the more tendentious claim that the Agenda represents a deeply un-Catholic embrace of Randian libertarianism. (Dr. Hudson was kind enough to send me an electronic copy of his paper, and -- with his permission -- I'd be happy to pass it on to anyone who would like to read it).

 

Well . . . the weekend closed with a great dinner of Copper River salmon with some friends and former students. Congratulations and thanks to the University of Portland, to the Garaventa Center, and to the Center for Ethics and Culture.

Rick