That's the title of an op-ed by BYU law prof Fred Gedicks--who is a good friend to many of us here at MOJ. You can read Fred's op-ed, which appears in the Washington Post, here.
Wednesday, January 15, 2014
Exemptions from the ‘contraception mandate’ threaten religious liberty
Long-Term Unemployment Benefits as the Paradigm of the "Safety-Net"
Those on the conservative side of our Mirror of Justice family, me included, frequently explain that our skepticism about state-centric proposals does not mean that we lack compassion for the unfortunate. To the contrary, we conclude that Catholic values are better advanced — not always, but often — by relying on inspired private initiatives and making room for communities and charities to work, not weighed down by government bureaucracy administered from Washington, D.C. Still, we insist, that doesn’t mean we think there is no role for government. We do believe in a safety net after all. Really. 
If so, then the current debate in Congress about extension of long-term unemployment benefits should be an easy case for us. If ever there were a case for preserving the “safety net,” this is one.
We’re not talking about permanent welfare type benefits given to those who shirk work and enjoy living free and easy on the dole. The very fact that these individuals are receiving unemployment benefits means that they were employed. They had established themselves as working Americans and then had that taken away from them, through no fault of their own.
Nor can continuation of those benefits legitimately be criticized as fostering dependency and discouraging a return to the work-force. No one who has earned a living wage will be satisfied for any length of time by the small weekly supplement provided through long-term unemployment benefits, always less than half of prior wages and typically about $300 per week. As Michael Strain, a conservative economist, pointedly observes: “A large share of the long-term unemployed are people with relatively high earnings potential and personal responsibilities that extend beyond themselves. It is hard to imagine an educated worker in her prime working years with a kid at home having allowed a $300-a-week check to stand between her and a strenuous job search for over half a year.”
Even with such benefits being continued, savings accounts will dwindle, mortgage payments will be missed, plans for assisting children with college expenses will be put on hold, and plans for retirement will go out the window. At best, long-term unemployment benefits slow down the economic decline and ease the impact. But the beneficiaries retain every incentive to return to full-time work.
Michael Strain points out yet another reason for allowing unemployment benefits to continue somewhat long: “If the benefits allow people to be more selective with which jobs they take, and they end up with a better match, that will increase their productivity, their contributions to the economy are higher in the long run, the likelihood that they'll quit or get fired later is smaller.”
Without long-term unemployment benefits, our neighbors who still cannot find work in this weak economy risk damage to family economic security from which they may never recover — a legacy of displacement and impoverishment that will be passed down to the next generation. When the house is lost to foreclosure, not because of foolish real estate purchases but the tragedy of a lost job, that family may never again be able to accumulate savings for a down payment or obtain the credit to buy a house. When children are forced to drop out of college because parents’ have emptied all savings to keep a roof over their head and put food on the table, their first steps into adult life lead to disappointment and discouragement. Long-term unemployment benefits provide a way to help ease that interruption of work and safeguard the American dream despite temporary setbacks.
Moreover, Republicans, so often incompetent in recent years in political messaging, have yet another reason to support long-term unemployment benefits. The very need to continue these benefits sends the message yet again about the failure of the Obama Administration on the economy. Now entering its sixth year in office, the Obama Administration continues to have a dismal record in restoring jobs to this economy. Indeed, President Obama has a history of promoting job-killing measures, from the Obamacare mandates to employers to the ramp up in environmental regulations.
A month ago, the job numbers were reported widely to be encouraging, although most commentators overlooked the fact that nearly half of those new jobs were in government and thus not adding to the productivity of the economy. And now this month, the job numbers are forthrightly discouraging. And more so than after earlier recessions, the numbers facing long-term unemployment are staggering. That is why we need to continue long-term unemployment benefits.
This should be the Republican message, which would have more power (and more persuasive value) if accompanied by the sensible step of extending long-term unemployment benefits. Instead, failing as a matter of principle as well as political strategy, Republicans in Congress have missed the chance to do the right thing here and to get political credit for it.
Monday, January 13, 2014
Impact of the Dying of "the Greatest Generation" on Disability Care
Like Cecelia (welcome!), I only recently had the chance to read through Evangelii Gaudium, and like her, I found it to be a 'treasure trove for reflection.' I must confess, though, to finding myself a tiny bit disappointed by the lack of mention of people with disabilities among Pope Francis's listing of the most vulnerable. It's clear from his actions in reaching out to people with disabilities in so many ways that they are among the populations to which he feels a special commitment, so the lack of mention of them in the Exhortation was something I noticed.
So today, I was delighted to see this report in Zenit of Pope Francis' private audience with Ileana Argentin, a member of the Italian parliament who is disabled and active in disability issues. The main topic of the meeting was an issue that I've recently become aware of as an emerging issue in the U.S. as well, "the importance of supporting the parents of seriously disabled people, who experience great anxiety about what may happen to their children after their own deaths, and the difficulties their siblings may encounter in assuming the responsibility of care."
In recent conversations with disability organizations in different parts of the country, I am noting a growing concern about our ability to care for the disabled children of the "Greatest Generation." (This is also an issue I'm facing personally from two directions, as my disabled son turned 18 and we think about his future, at the same time that my siblings and I are confronting the future care of our own brother with disabilities, still living at home with our aging mother.) Among the battles the Greatest Generation fought were the ones fought by brave and caring parents to keep their children with disabilities from being institutionalized, to get them into public schools, and to get jobs and other sorts of community support for their kids. But many of these parents did this work privately, without involving the (then-nonexistent) state support mechanisms. Many of these children did not move into group homes, and all of these children are now themselves adults, still living at home with aging parents who are dying or increasingly unable to care for themselves. Transitioning into any kind of a group care situation is difficult under any circumstances, but the difficulty is magnified when the transition is taking place in the midst of mourning the death of a parent. I heard one story of a disabled adult living at home whose mother died; it only came to the attention of the 'authorities' when members of their local church noticed they had stopped attending Mass.
I'm grateful to Pope Francis for bringing some attention to this emerging crisis in the care of some of the most vulnerable.
Natural Law and Public Affairs summer seminar
Do you know any outstanding students who might be interested in participating in the Witherspoon Institute's first summer seminar on Natural Law and Public Affairs? If so, I would be grateful if you would share this announcement with them. I will be teaching the seminar together with Sherif Girgis and Ryan Anderson. It will be held in Princeton, July 16-20, 2014. Students from any college or university in the U.S. or abroad are eligible to apply. The Witherspoon Institute will also be offering seminars this summer on such topics as medical ethics (taught by Dr. Farr Curlin and Prof. Christopher Tollefsen), the moral foundations of law (taught by Profs. Gerard Bradley and John Finnis), and Christianity and metaphysics (taught by Profs. John Haldane and Candace Vogler). For a complete list (and eligibility requirements) please visit the Witherspoon Institute webpage.
http://winst.org/centers/ceu/summer-seminars/natural-law-and-public-affairs-seminar/
Why Excluding Same-Sex Couples from Civil Marriage Violates the Constitutional Law of the United States
That's the title of a lecture I delivered--the David C. Baum Memorial Lecture--at the University of Illinois on November 6, 2013. Some MOJ readers may be interested in the lecture, which is downloadable here.
Friday, January 10, 2014
Dubber's Introduction to Foundational Texts in Modern Criminal Law
Professor Markus Dubber has posted his introduction to a forthcoming volume called Foundational Texts in Modern Criminal Law. The book contains a series of essays on important figures in the intellectual history of criminal law--spanning Hobbes, Beccaria, Blackstone, Bentham, Kant, Feuerbach, Hegel, JMF Birnbaum, Mill, Stephen, Pashukanis, Gustav Radbruch, Wechsler, Glanville Williams, HLA Hart, Becker, Foucault, Nils Christie, and Günther Jakobs. You can find some of the primary texts considered on this very helpful page. In the cases of Birnbaum, Radbruch, Jakobs (and I think also Feuerbach), there are first-time English translations from the German of the works considered. There are also very interesting lesser known works of some of the better known authors. For example, do check out Beccaria's little algebraic gem, "An Attempt at an Analysis of Smuggling." The first paragraph alone is wonderful. I was delighted to contribute to this project with an essay on JF Stephen (my essay focuses on his History of the Criminal Law of England), an early draft of which is here.
Markus uses the introduction to discuss certain thematic threads in a massive work like this. Here are some of his interesting reflections (after the fold) with respect to the organizing perspective of the book. I particularly appreciated his comments about developing a canon of texts in the field, "if not of principles":
The Unseen
Thanks for the warm welcome, Rick (and for the blast-from-the-past reminder of my short-lived acting career). As a long-time MoJ follower, it’s a real treat to make my blogging debut here.
I’m the mom of a newborn, so I am a little behind on everything. It was just this week that I finally sat down and read Evangelii Gaudium (rather than media summaries of it). The exhortation is a treasure trove for reflection, but what struck me most was the Pope’s discussion of our Christian duty to care for those who are especially vulnerable and worthy of concern. He includes in that category “the homeless, the addicted, refugees, indigenous peoples, the elderly who are increasingly isolated and abandoned,” as well as migrants, victims of human trafficking and domestic violence, and the unborn.
All of those identified share a common plight: by virtue of their position in the world, they are largely unseen by those with the power to alleviate their suffering, whether by offering direct charity or by changing the social systems that enable them to remain isolated. It is their marginalization that makes them vulnerable—hidden from view, their suffering is easily overlooked, even by those of goodwill. It is easy to ignore them, or even to become “comfortabl[y] and silent[ly] complicit” in their exploitation.
There is another group of people the Pope didn’t include on his list, but might have. They aren’t as sympathetic as babies or the elderly or refugees, but they are every bit as invisible: those who have been convicted of crimes. Whether shut away from sight behind walls and bars, or shut out of civic life by virtue of lifelong collateral consequences, those who are prosecuted for their crimes (because we all commit crimes—more on that another day) pay a price that leaves them as vulnerable to exploitation and despair as the victims of trafficking and domestic violence that the Pope rightfully identifies. (And of course, “victim” and “offender” are often fluid categories.) Complicating the predicament of the convicted, and adding to their isolation, is the fact that, as the Pope observes, “the current model, with its emphasis on success and self-reliance, does not appear to favour an investment in efforts to help the slow, the weak or the less talented to find opportunities in life.” No kidding.
Making the burdens prisoners bear more visible is no easy job. An ongoing effort to catalog the the collateral consequences of criminal conviction suggests that every felony offense carries with it hundreds (and in some cases nearly a thousand) civil restrictions, affecting everything from the right to vote to the ability to secure basic employment. Many of these restrictions last years, and some endure for a lifetime. The volume of collateral consequences is so great, and their codification so haphazard, that lawyers are often unable to identify the full effects of conviction in any given case—a fact that the Supreme Court noted in its 2010 decision in Padilla v. Kentucky,and one that emphasizes the invisibility of the weight convicted individuals shoulder as they struggle to reintegrate into the full life of their communities.
In the next few months, I hope to discuss a few of the ways laws exacerbate—and might help remedy—the vulnerability of those who have been convicted of crimes. I look forward to joining the conversation.
Thursday, January 9, 2014
Michael Ignatieff on Why Denmark Protected Its Jews
In the New Republic, Michael Ignatieff enthusiastically reviews a new book, Countrymen, that recounts with "intensely human" detail how
when, in October 1943, the Gestapo came to round up the 7,500 Jews of Copenhagen, the Danish police did not help them to smash down the doors. The churches read letters of protest to their congregations. Neighbors helped families to flee to villages on the Baltic coast, where local people gave them shelter in churches, basements, and holiday houses and local fishermen loaded up their boats and landed them safely in neutral Sweden.
Looks like a compelling read. After listing several of the contingent factors that led Danes to be one of the few populations to protect its Jewish countrymen, and that led Nazis to allow it to happen there, Ignatieff concludes:
There is a sobering message in Lidegaard’s tale for the human rights era that came after these abominations. If a people come to rely for their protection on human rights alone, on the mutual recognition of common humanity, they are already in serious danger. The Danish story seems to tell us that it is not the universal human chain that binds peoples together in extremity, but more local and granular ties: the particular consciousness of time, place, and heritage that led a Danish villager to stand up to the Gestapo and say no, it will not happen here, not in our village.
Another Law School Ranking Scheme
The National Jurist's PreLaw magazine just published another law school ranking that ought to be of interest to MOJ readers, even if only to quibble about how impossible/illegitmate/inappropriate this is to be the subject of a 'ranking': "The best law schools for devout Catholics, Christians, Jews, Muslims, and Mormons." Of course, my initial position is that this MUST be credible/legitimate/appropriate, since UST Law is ranked #2 for Catholic Law Schools, and the article cites me (along with other friends of MOJ).
Objective Reality versus Reification
I should like to thank Kevin Walsh and Marc DeGirolami for their fine presentations yesterday on several pressing issues concerning the legal challenge of the Little Sisters of the Poor to the HHS mandate and related Government demands. There is a great deal of misinformation circulating about the mandate—some of from the media, some of it from prominent persons, and some of it sadly from the Government itself. Thus, there is a great deal of misunderstanding about the legal challenge initiated by the Sisters, and I am grateful to Kevin and Marc for their excellent clarifications. Some of the problems with the mandate are to be found in a law of questionable integrity and durability.
Why do I say this? Why do I make these charges?
I go back to the fact that the original legislation was several thousand pages long. I do not think it wise or prudent to enact legislation of such magnitude, especially under pressing time constraints where legislators, their staff members, and the public have a grossly incomplete picture of the the bill and the law it can become. The legislative process, in spite of political compromises and generalities that must be taken into consideration, is still an intellectual process that leads to the development of norms, some of which are enforceable by criminal and civil sanction. The bills that become laws should therefore be understood by those responsible for their making and for the citizenry whose lives will be affected. If this understanding is absent, how can lawyers and judges fairly explain their meaning?
We are still learning much about what the Obamacare statute contains; moreover, it will take still more time to interpret objectively its many provisions, some of which appear to or do conflict with one another. The former speaker of the House was correct on one matter on the eve of the statute’s passage by a slim majority of the House of Representatives—and I do not say this with admiration for the substance of what was said: we just have to pass the bill to know what’s in it. This is a terrible way to make law. What is in the bill should be known by those responsible for its passage before it becomes law and affects, often adversely individuals and the common good.
But Obamacare, which is being legally challenged on a number of fronts, is the law, for the time being—complete with its benefits, its problems, and its sanctions.
As Marc and Kevin have demonstrated, there are sound arguments that demonstrate the laws many Achilles’s heels. With time, more sound arguments will reveal more defects in the statute. As Marc and Kevin have capably illustrated, the Government’s arguments to justify and uphold questionable provisions that are, in turn, supported by influential media voices fail to take stock of the objective meaning of the language of our fundamental law, the Constitution of the United States, and the reality that surrounds the Constitution and the flawed Obamacare legislation.
Today’s first reading for the Mass of the day is taken from the first letter of Saint John. This text from sacred scripture reminds us that there are those who take liberties with the truth that surrounds important matters. Such a liberty compromises, sometimes fatally, the truth of human existence and the norms that should uphold the common good that it designed to protect each and every person’s legitimate interests.
It is clear that the Government and powerful media outlooks have taken such liberties and, furthermore, have tried to block or treat as irrelevant (even as non-existent) opposing views to their positions. Their actions inevitably compromise the truths about the healthcare legislation that confront many people of good will; in addition, the justifications offered by the state and its allies in the media misrepresent what the citizenry have the right and the obligation to know about their laws, their Government, and their general welfare that is adversely affected by this legal beast.
This is where Catholic legal theory and the efforts of those of us who still train the new lawyers who will become legislators, administrators, and judges of our human laws come into play. On this website, in my classrooms, and in the lecture halls around the world where I have spoken, I have emphasized time after time the significance about human intelligence comprehending intelligible reality in order to make, follow, and adjudicate norms that protect and further the common good. This approach to the law, legal education, and what both are about is distant from the efforts of our Government and its confederates in their persistent efforts that will likely, in the long harm, do more harm than the good it was supposed to achieve.
Again, I am grateful to Marc and Kevin for their work to demonstrate the reality of the law and its implications on the lives of many who will suffer under it. The so-called reality of the matter as explained by the state in its defense of this problematic legislation is anything but valid; it is, in fact, a reification of what the state thinks is in the best interest of the common good of the American people but is not.
RJA sj
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