Returning to Steve’s question on cooperation with evil, Roe, and the Constitution, I find Randy Barnett (Originalist Sacrifices, Volokh Conspiracy) helpful as a preface to my post:
“A commitment to a written Constitution, however, requires either that one put the law represented by the Constitution ahead of one's even deep-seated desires, or that one candidly reject the Constitution as so morally deficient as to lose its status as binding authority. What is improper is both to jettison the written Constitution AND to wrap oneself in its mantle.”
In Steve’s hypothetical, does the constitutional theory justify Roe’s outcome as a reasonable (but not required) interpretation of the Constitution or does it require or compel the result in Roe?
In either case, I would not think that developing the theory and/or showing how it can be used to justify Roe is in itself cooperating with evil. If I conclude that the Constitution, as written, allows for or requires the result in Roe, then I am merely stating the conclusion derived from my interpretative theory. I go down a dangerous path (as Robert Bork has pointed out on more than one occasion) if I mangle the Constitution to achieve what I think is a good result.
The relevant inquiry for me is how do I respond to the Constitution, which I have hypothetically concluded must be interpreted to allow or require Roe’s result?
If my constitutional theory merely validates but does not compel Roe’s outcome, then I do not think I cooperate with evil in promoting my theory. From my limited understanding of moral theology and philosophy, I am not engaged in formal cooperation or immediate material cooperation with those who promote the pro-Roe reading of the Constitution using a similar interpretative theory. The moral object of my act (promoting a constitutional theory that has the effect of preserving a sphere of authentic freedom for the individual) is distinguishable from the moral object of the other's act (promoting a constitutional theory that has the effect of creating a sphere for the disordered use of freedom, i.e., killing one’s offspring). Lest there be any confusion about my position, I could disentangle myself from any association with those who intend the evil end (Roe’s result) by developing and promoting arguments as to why Roe’s result should not be adopted under my theory, even if it is a permissible but not necessary result under my theory.
If, however, my constitutional theory compels the result in Roe, then while I may develop it, and argue its logical conclusions (the validation and requirement of Roe’s result), I do not think that I can promote such a constitutional regime without illicitly cooperating with evil. It is at this point that I would be required to take Professor Barnett’s second path and “candidly reject the Constitution [or that part of the Constitution that requires Roe’s result] as so morally deficient as to lose its status as binding authority.”
If I cooperated in and promoted a constitutional regime that required Roe but also allowed (maybe even required) other freedoms, i.e., parental choice in education, I would be, if I understand the terms correctly, engaged in cooperating illicitly with the evil of abortion. Depending on my intent, this cooperation may be implicit formal cooperation or immediate material cooperation. Either way it remains morally wrong.
My cooperation would be implicit formal cooperation if I made a bargain with the devil: “I’ll promote this constitutional regime even though it requires Roe’s result because it also protects my interest (i.e, parental educational choice) in return for you (the abortion advocate) promoting this constitutional regime, which protects the freedoms that I care about.” This is formal cooperation with evil because I am joining the abortion advocate in his intention to promote a constitutional regime that requires protection for abortion. In other words, by my compromise, I intend the evil consequence, albeit for my own good reasons.
My cooperation would constitute immediate material cooperation with evil if I continued to promote this constitutional regime despite the fact that it requires Roe’s result. Although I do not intend the evil consequence (an abortion regime), my actions in promoting a constitutional regime consistent with my constitutional theory for good reasons (protection of authentic freedom) has the direct and immediate effect of aiding those who desire the evil object (protection of a disordered freedom that will allow for the killing of one’s offspring).
Now that I have hazarded an answer, I welcome comments, criticisms, and corrections from readers and co-bloggers.
A contribution from Gregory Kalscheuer, SJ at Boston College Law School:
After reading Amy's recent posting raising the crucial issue of how to move beyond culture war paralysis, I wanted to call people's attention to an interesting piece by Bryan Hehir in the most recent issue of the National Center for Pastoral Life's journal, Church (Spring 2004). Hehir raises the question: can the Church convincingly engage American culture? His answer focuses on the need for the Church's voice to be both dialogic and prophetic, with a clear emphasis on the primary role of dialogue if the Church's witness to its moral vision is to be effective.
Hehir sees Guadiem et Spes as the crucial text that ought to guide our reflection on this issue. This central Vatican II document recognizes both that the Church stands in a dialectical relationship with the world and that this dialectical relationship is most fruitfully sustained by an ongoing dialogue with the world. Operating in this dialogic mode, the Church has to demonstrate that it is open to learning from the world,as well as witnessing to it. There may be times when a more prophetic stance is called for, but the culture will more constructively be engaged through a pedagogical dialogue, where the Church both teaches and learns. Paragraphs 40 and 44 of Gaudiem et Spes are particularly important in this regard.
The Church's credibility as a moral voice in contemporary culture depends on its ability to find a voice that can humbly learn as well as confidently teach. Hehir points to John XXIII's encyclical Pacem in Terris and the US bishops' 1983 pastoral letter, the Challenge of Peace, as manifesting the sort of dialogical mode of speaking to the world that is required if the Church is to engage in effective conscience formation of well-educated, highly skilled adult people of faith. Cardinal Bernardin spoke eloquently of the dialogical, pedagogical, persuasive style of engagement with the world that Gaudiem et Spes models: "We should be convinced that we have much to learn from the world and much to teach it. We should be confident but collegial with others who seek similar goals but may differ on means and methods. A confident Church will speak its mind, seek as a community to live its convictions, but leave space for others to speak to us, help us to grow from their perspective, and to collaborate with them." See the very useful collection of Bernardin's speeches edited by John Langan, A Moral Vision for America. Also helpful in this regard is David Hollenbach's notion of "intellectual solidarity," which he spells out in chapter six, of The Common Good and Christian Ethics (e.g., at 137: the intellectual work of bringing religious values into public discourse in a religiously pluralistic community "is a form of solidarity, because it can only occur in an active dialogue of mutual listening and speaking across the boundaries of religion and culture. Indeed, dialogue that seeks to understand those with different visions of the good life is already a form of solidarity even when disagreement continues to exist.").
I'm confident that CST can provide us with an effective set of tools and principles to engage in the project of presenting what Amy called "the unique and profound beauty of the Catholic Church's vision of the human person and social life," while respecting dialogue partners with diverse approaches and differing prudential judgments about what the common good demands. I fear that the beauty of that vision can be obscured when the vision is presented more by means of public condemndations than through a humble, confident, and hope-filled dialogue of learning and teaching.
I came across two very interesting reflections on capital punishment today: Here, at "The Evangelical Outpost" and here, by Joshua Davey, at "Letters from Babylon." Both reflections were prompted, it appears, by Justice Stevens's recent remarks on the matter. For some thoughts of mine, see "Christian Witness, Moral Anthropology, and the Death Penalty," here.
Rick
