Wednesday, February 18, 2015
Over at dotCommonweal ("Don't Call us Libertarians!"), Matt Boudway responds to this piece and returns to an issue / debate/ question / distraction that I've tried to address a number of times here at MOJ, namely, the asserted tension between "libertarianism" and Catholic Social Tradition.
I continue to agree entirely with the claim that Catholicism proposes a moral anthropology that is importantly and significantly different from the vision proposed by some writers, thinkers, and politicians who embrace or reasonably deserve the label "libertarian." (Robby George once called libertarianism a "heresy" and, given the target, I think he was right.) At the same time, I think that, for too many Catholics, "libertarian" is becoming little more than an epithet that one attaches to particular policy proposals or stances one does not support, whether or not those proposals or stances actually depend on or reflect "libertarian" premises. As I argued in more detail here, and here, and here, "laissez-faire libertarianism" is, in my view, usually, a straw man. A bit:
I have no interest in (my understanding of) the "objectivism" of Ayn Rand. It seems to me that the best and most morally attractive legal-and-economic regimes will be democratic-capitalist and constitutionalist with appropriate and effective social-welfare-protecting programs and constraints. But, it is not “Randian” to think that the basic “liberal” ("libertarian"?) insight -- i.e., governments should be limited by law and non-state ordering and associations should be protected and respected by law remains, well, insightful.
I agree . . . that conversations about public policy should be couched in terms that treat ideas like "competition" and "consumer choice" as means and mechanisms. But, it's worth remembering that they are, often, very effective means and mechanisms. To the extent they are, let’s use them! Sometimes, “libertarian” (or "free market" or "non-state" or "private ordering") policies are the better ones, not so much because of imperatives connected with deep anthropological premises or because of an idolatrous attachment to autonomy, but because . . . they [again, sometimes] work better (at bringing about human flourishing and common good, properly understood).
Matt writes, "There are those who believe that markets are essentially self-correcting, that the state should not concern itself with distributive justice, and that worries about inequality are reducible to envy. But Pope Francis isn't among them, and neither were his predecessors." I certainly agree with the second sentence, but I am still pretty confident that the number of "conservative Catholics" who fit the description in the first sentence is very small. The questions that tends to divide Catholics-who-all-things-considered-vote-Republican and Catholics-who-all-things-considered-vote-Democratic are, it seems to me, "how much?", "on balance, what should we do?", and "who what extent?" questions.
As this piece in the Washington Post notes, there is a lively conversation going on -- in both the physical and virtual worlds -- about the University of Notre Dame's core-curriculum review and about the possibility that the current "two courses in Theology and Philosophy" requirement could be watered down or scrapped. (Although I did not attend Notre Dame, and do not teach undergraduates -- though I'd love to! -- I believe strongly that the requirement should be enriched and deepened . . . and retained.) My friend and colleague Prof. Cyril O'Regan's presentation on the matter -- "The Catholic University, Theology, and the Curriculum" -- is outstanding, and available here. Here's a bit:
I judge the stakes regarding the current review of Curriculum to be extraordinarily high for the definition and the future of the university. We have not quite reached that pitch of apocalyptic crisis where it is appropriate to recur to the throw-down from Lord of the Rings in which Gandalf stands against the unspeakable Balrog in the mines of Moria and, facing it, says with Moses-like staff in hand: Thou shalt not pass! The jig is far from up for our beloved Notre Dame. But let there be no mistake about it, I do believe there is something seriously wrong with the emerging ethos of Notre Dame, which in my view is very much symptomed in what I regard as run-away enthusiasm for irresponsible invention evinced in the core curriculum review. This is a moment for our common reflection of what and who we are and what and who we are becoming, and possibly gather those forces whereby in a real sense we become who we are.
Read the whole thing!
My friend and colleague, Fr. William Dailey, closed his Ash Wednesday homily with a wonderfully succinct restatement of the bedrock anthropological point that many of us here at MOJ have been returning to for eleven years now: "When we realize who we really are and what we are made for . . . there's a word for that: Joy." Amen.
Monday, February 16, 2015
On February 18, St. John’s University Law School will host a panel, “Threat to Justice: Middle Eastern Christians and the ISIS Crisis,” at the university’s main campus in Queens, New York. The event will be co-sponsored by the Center for Law and Religion and the Catholic Law Students Association. Speakers will include Michael LaCivita (Catholic Near East Welfare Association), Edward Clancy (Aid to the Church in Need) and Mark Wasef (United for a New Egypt). My colleague, Mark Movsesian, will moderate.
The topic of the panel could not be more urgent in light of the near-daily barbarities perpetrated by the Islamic State.
Please join us if you’re in the neighborhood. Details are here.
UPDATE: And do read this excellent article at The Atlantic by Graeme Wood, "What ISIS Really Wants."
Wednesday, February 11, 2015
Reading through Jacob Levy's (great) new book, Rationalism, Pluralism, and Freedom, I came across (p. 66) these two quotes:
There are certain ideas of uniformity, which sometimes strike great geniuses (for they even affected Charlemagne), but infallibly make an impression on little souls. They discover therein a kind of perfection, which they recognize because it is impossible for them not to see it; the same authorized weights, the same measures in trade, the same laws in the state, the same religion in all its parts. But is this always right and without exception? Is the evil of changing constantly less than that of suffering? And does not a greatness of genius consist rather in distinguishing between those cases in which uniformity is requisite, and those in which there is a necessity for differences? In China the Chinese are governed by the Chinese ceremonial and the Tartars by theirs; and yet there is no nation in the world that aims so much at tranquillity. If the people observe the laws, what signifies it whether these laws are the same? Montesquieu, The Spirit of the Laws.
And this:
The man of system, on the contrary, is apt to be very wise in his own conceit; and is often so enamoured with the supposed beauty of his own ideal plan of government, that he cannot suffer the smallest deviation from any part of it. He goes on to establish it completely and in all its parts, without any regard either to the great interests, or to the strong prejudices which may oppose it. He seems to imagine that he can arrange the different members of a great society with as much ease as the hand arranges the different pieces upon a chess-board. He does not consider that the pieces upon the chess-board have no other principle of motion besides that which the hand impresses upon them; but that, in the great chess-board of human society, every single piece has a principle of motion of its own, altogether different from that which the legislature might chuse to impress upon it. Adam Smith, Theory of Moral Sentiments.
I'd encountered (as have most MOJ readers, I imagine) these passages before, but . . . they seemed timely.
I have posted at Public Discourse my critique of James Oleske's Harvard Law Review Forum review of my book Conscience and Its Enemies:
http://www.thepublicdiscourse.com/2015/02/14430/
Tuesday, February 10, 2015
Earlier today the Virginia Senate passed a bill (SB 1393) to hide from public view both the drugs used to execute convicted capital criminals in the Commonwealth and those who supply these death-dealing drugs. The best explanation behind a bill like this is to shield Virginia's death-drug suppliers from criticism. Virginia apparently intends to rely on compounding pharmacies that are only willing to supply death-penalty drugs as long as nobody knows who these pharmacies are and what they are doing.
This bill does nothing to make death-penalty administration easier any time soon. If enacted, its main effect in the next months and years will likely be to wrap officials up in new constitutional litigation in which expenditures of time and money are the only guaranteed outcomes. Nor would this legislation advance any valid purpose of criminal punishment. Virginia has death-penalty drugs on hand. Should this supply run out and not be replenished (however unlikely), electrocution remains available under state law.
In truth, this legislation is not really about making executions happen. It is about insulating execution administration from criticism. That is not a good reason to pass a law like this. Although the death penalty is controversial, the right approach to controversy in a free society is not to hide what government does when it kills in the name of the law.
Self-government in a regime of ordered liberty requires critical review of the government's actions, including its administration of the ultimate penalty for criminal wrongdoing. As James Madison wrote in the Virginia Resolutions of 1798, the "right of freely examining public characters and measures, and of free communication among the people thereon, ... has ever been justly deemed, the only effectual guardian of every other right."
If bad publicity is an undesired effect of being a death-drug supplier for the state, the solution is not to supply a shield from that publicity. With no disrespect to P.T. Barnum, we should all appreciate that, at least with respect to lethal pharmaceuticals, there is such a thing bad publicity, and that is good.
It would be a different matter--one calling for a different solution--if drug-compounding pharmacies were to be illegally threatened or intimidated. But that is not a real problem right now. The law already protects against threats and intimidation anyway, while there are (properly) not laws against being criticized. As Justice Scalia has written (in a distinct but related context), "[t]here are laws against threats and intimidation; [but] harsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for self-governance."
Among those testifying against this bill yesterday were my Richmond Law colleague Corinna Barrett Lain and Virginia Catholic Conference Executive Director Jeff Caruso. When I learned that the bill had barely passed out of committee on a 7-6 vote, I had hopes that it might fail in the Senate as a whole. But instead it passed by a 23-14 vote. Voting in favor were 19 Republicans and 4 Democrats; opposing were 13 Democrats and 1 Republican. Interestingly, 3 Republicans had voted against the bill in committee. When the whole body voted, though, one Republican flipped (Sen. McDougle) and another abstained (Sen. Stuart), leaving just one to vote against (Sen. Stanley). Meanwhile, this Republican-supported bill is sponsored by a Democratic senator (Dick Saslaw) and championed by a Democratic governor (Terry McAuliffe).
It looks like the only off-ramp from this bill becoming law is the Republican-controlled General Assembly. Will they do the bidding of Virginia's drug suppliers and pass SB 1393? Or will they dig deeper instead and do the right thing by declining to drape a veil of secrecy over lethal injections in Virginia?
This paper, "Church and State in Founding Era Constitutions," by my friend and colleague, Vincent Phillip Munoz, will be of interest. Here is the abstract:
An enormous effort has been dedicated to uncovering the original meaning of the First Amendment’s religion clauses, but, surprisingly, little research has been directed toward the Founding-era state constitutions on church and state. This article aims to open a field of inquiry by making the church-state provisions of the Founding-era state constitutions more accessible. It begins with a consideration of the distinction between the state declarations of rights and the state constitutions and the interpretive challenge this distinction poses. I then identify, categorize, and interpret the relevant church-state provisions of the Founding-era state declarations of rights and constitutions. The article concludes with a discussion of how a deeper knowledge of the Founding-era state church-state provisions might shed light on the original meaning of the First Amendment’s religion clauses, and it reveals the probable errors of particular originalist arguments made by leading scholars and Supreme Court justices.
