Monday, January 28, 2013
A proposal to ban abortion . . . in 40 years.
An interesting essay, by Michael Paulsen, at Public Discourse.
Friday, January 25, 2013
Our Nation’s Crushing Debt as a Moral Hazard
For most of us as Catholics, we probably associate “stewardship” with that time of the year when the priest or parish council ask us to commit to making contributions to the parish for the coming year.
Stewardship is not only about giving money away, but about making wise use of the resources to which we are entrusted. And an essential part of that stewardship is to preserve resources for use by the next generation. As a nation, we are failing that responsibility — and failing miserably.
Each person
in America today — every man, woman, and child — owes more than $30,000 in
national debt. And it will only get
worse, rising above $100,000 per person over the next two decades.
If nothing is changed — indeed if there is not dramatic change — the next generation will drown beneath a sea of the debt.
Simply put, America faces no greater danger today than the crushing national debt. No greater threat to a secure safety net for all Americans exists than the uncontrolled growth in entitlements, which eventually will crowd out all other discretionary spending and, in any event, is itself unsustainable. No greater obstacle to prosperity for the next generation of Americans is before us than leaving them with the bill for out-of-control federal spending.
But you wouldn’t know it from hearing President Obama’s inaugural speech this week. He could barely spare a word for the deficit, other than to argue against any meaningful spending cuts and apparently pledging his vociferous opposition to any reform of Social Security, Medicare, and Medicaid.
And you wouldn’t know it from President Obama’s concerted actions since the election, as he has steered away from the balanced approach that he promised during the campaign. Yes, President Obama campaigned for higher taxes on higher-income individuals. But he promised to combine tax increases with spending reductions. When the fiscal cliff approached, however, President Obama demanded only tax increases while refusing to agree to any limits on spending.
Immediately following the election, I was optimistic that President Obama would seize this opportunity to move toward meaningful reform of entitlements and to arrest runaway deficits. As I wrote here on Mirror of Justice, I thought that he would want to be remembered as a President who got the nation’s fiscal house in order, rather than the President who bankrupted the country. The President appears determined to prove me wrong.
Commenting
on the inaugural address, Peter Wehner at Commentary writes:
He is fully at peace with running trillion dollar deficits as far as the eye can see. He not only won’t lift a finger to avoid America’s coming debt crisis; he will lacerate those who do.
In the end, though, President Obama’s concern for the less fortunate is at war with his insouciance about trillion dollar deficits:
* The greatest opportunity for those of lower-income and the strongest hope for a secure safety net is a growing national economy. The huge national debt is a constant downward pressure on the economy, suppressing growth below what it otherwise would be and leaving more Americans unemployed (and underemployed) and incomes stagnant. A weaker economy also means greater demands on social services with fewer resources available to meet those demands.
* This year, the United States is projected to spend $224 billion of taxpayer money for interest on the national debt. With President Obama’s deficit spending, the interest due will more than double to $524 billion in a decade. That’s more money than the federal government spends on education, transportation, veterans affairs, etc. And that’s money not available to help anyone or strengthen any social welfare program. Think of what we could accomplish today if we could use that money, instead of transferring it to China and other holders of American debt beyond our shores.
* The Obama trillion-dollar deficits are simply not sustainable. Unless entitlements are reformed, and President Obama has signaled retreat from his earlier acknowledgment that such reform is essential, we will reach a point in which the government has no money left to spend on any programs other than Social Security, Medicare, and Medicaid. The current projection is that we’re only about twenty years away from a situation where all federal revenues are consumed by these three programs, as they are further extended by Obamacare.
* When the day of reckoning arrives on the national debt, the poor will be in the most vulnerable position. When the desperate scramble comes over the shrinking revenues available for anything other than entitlements and interest on the national deficit, the poor and disabled and otherwise disadvantaged are likely to end up on the short end.
President Obama hopes to be remembered for enhancing social justice and equality. I have no doubt that he is sincere in that hope. But unless he faces fiscal reality and becomes an energetic advocate for entitlement reform and deficit reduction, he instead will be remembered for his out-of-control spending and doubling the national debt during his time in office. This period in American history will be held up as an object lesson for reckless spending and economic delusion, likely followed by an era of severe economic and fiscal retrenchment that maydepress the American dream for a generation.
There is still time for President Obama to show leadership and secure his social justice vision by meaningful entitlement reform and reduction of deficit spending. Based on the President’s words and actions since election day, I am no longer sanguine about the prospects.Charles Reid is mistaken about Roe, Cardinal Bernadin, and the pro-life movement
In this HuffPo essay, to which Michael Perry linked, Charles Reid is mistaken in several respects. First, he re-presents the frequently advanced -- but no more compelling for being frequently advanced -- argument that, because Justices O'Connor, Kennedy, and Souter declined to overrule Roe in Casey, it is "obvious" that "Republican promises on abortion were cynically motivated by partisan advantage and were not a sincere commitment to the life issues." The suggestion, I take it, is that pro-lifers should not vote for Republicans because Roe will never be overturned.
I suspect it probably won't -- at least not explicitly. That said, the five Justices who have indicated a willingness to uphold reasonable restrictions on abortion were appointed by Republicans, and the four who have indicated a determination to invalidate such restrictions were appointed by Democrats. So, if you think (as you should, if you are pro-life) it's important that (i) our laws move in a pro-life direction and (ii) that those laws survive judicial scrutiny, then you have (Casey notwithstanding) a good reason -- even if not a conclusive one -- to prefer that Republicans, rather than Democrats, nominate and confirm federal judges.
Second, Reid suggests that Cardinal Bernadin's "consistent ethic of life" emphasis provides an "alternative road map for American Catholics," according to which "the premise of the pro-life movement must be about saving lives, not winning elections or even changing laws." Cardinal Bernadin did not think, in fact, that pro-lifers should stop at "saving lives" and disregard the important task of "changing laws." He would have been wrong if he had. True, there are limits -- some imposed by the Court, some imposed by political and cultural realities, some by sound judgment and prudence -- to what laws can do when it comes to creating a culture of, and a consistent ethic of, life. But I am very confident that Cardinal Bernadin would firmly reject the suggestion that pro-lifers should settle for our current, deeply unjust legal regime. Cardinal Bernadin never suggested Catholics should abandon the struggle for legal change; his challenge, instead -- which we should all embrace -- was to broaden that struggle, to other contexts and other ways in which the dignity of the person is threatened or disrespected.
Thursday, January 24, 2013
The American Catholic Church and Roe. v. Wade
A post by University of St. Thomas law prof Charles Reid, here.
Constitutions as Establishments
I've been thinking a little bit about the difference between establishments and disestablishments of religion. Constitutions serve several functions, but for this post, I'm interested in one in particular: to entrench the idea that there is a law above the state's law -- a law that cannot be changed by ordinary legislation. Could one say this about established religions in constitutional states? The argument would be that established religions in constitutional states place the constitutional state above its ordinary law, and they thereby control and restrain (the reach of) ordinary law. Establishments of religion sacralize the state. If the claim works, then as a functional matter, one might think of the Constitution as an establishment of "religion" -- understood as that which is higher than ordinary law. Just to put it intentionally controversially, the Constitution -- and, even more specifically, the First Amendment -- is our establishment. It enshrines limits on the ordinary power of government, and in the case of the Free Exercise Clause, it can even subordinate the ordinary acts of government to higher law. And the First Amendment is an establishment inasmuch as it incorporates certain relationships between the state and religion right into the fabric of the governmental structure -- relationships which it then fixes and removes from the purview of ordinary law. The difference between constitutional states with establishments of religions and those without them is that in the former, God or the gods establish the state, while in the latter, people do. But in both cases, constitutions 'establish' the (for lack of a better term) sacredness of the state and cement its position above ordinary law. And so, from this perspective, the opposite of establishment is not so much disestablishment as tyranny.
The Rise of Pro-Life Incrementalism
I'm a bit late on this, but here's an interesting post, from the Legal History Blog, by Prof. Mary Ziegler, on "The Rise of Pro-Life Incrementalism." Thoughts?
The Politics of Religious Liberty: Three Perspectives
I thought to bring up again an issue that I've raised here before a few times. It involves the alignment of support and opposition for religious liberty with political orientation, and whether that alignment is undergoing a fundamental shift or not. Here are chunks of three writings to set the stage.
The first is from something I wrote a few years ago:
My horse sense is that the political history of law and religion scholarship might track (very) roughly the comparatively recent history of American politics. It would evince, that is, a movement from a state of relative convergence on a set of agreed upon views to a state of increasing splintering and balkanization (or, to put it in more sanguine as well as ambiguous terms, to a state of increasing pluralism) of perspective. Of course I don't mean that the earlier convergence among religion clause scholars tracked or mirrored an earlier political convergence, or that the current, more balkanized situation runs parallel to contemporary American politics.
What I mean is that if one were to survey the state of the field, say, roughly 30-40 years ago, one would probably see something approaching a rough similarity of perspective among many law and religion scholars -- folks who read both the Free Exercise and Establishment Clauses in a 'strong' way. Many of the most important scholars of that generation held that general view, even as there may have been intramural differences among them. Indeed, some of those very same folks were in attendance at our conference. Of course there were dissenters from that general position 30-40 years ago too -- but the point is that there existed such a majority view, and that it was considered, for lack of a better term, mainstream, or eminently reasonable within the academic world -- a mid-20th century academic moderate liberal's view (which is not the same as a non-academic moderate liberal view). Part of the power of the view was that a strong reading of the Establishment Clause gave these scholars a kind of bona fides -- certainly within academic circles -- when arguing for a strong reading of the Free Exercise Clause. If you are against majoritarian religion, the chances might increase in the academy that people will listen to you when you argue in favor of anti-majoritarian religion.
But today, I think it is much more difficult to identify any mainstream or consensus-like position. There are those who like a strong EC and a weak FEC, those who prefer weak readings of both, those who go for a strong FEC and a weak EC, and those who hold to the strong reading of both. But even those who prefer the dual strong reading aren't necessarily coming at the issue from the point de depart of mid-century academic moderate liberalism. Some are coming from traditions of faith; some from radical political perspectives; some from rather specialized policy engagements; some from distinct philosophical traditions, and so on. That variety of background has generated a broadening of normative preferences. And so too, perhaps like the political culture itself, the political culture of law and religion scholarship exhibits a pattern of fragmentation -- it begins to look much more like a European parliamentary arrangement than the American situation at least as it once was.
The second is from a recent post by Nelson Tebbe:
Two questions come to mind about this familiar understanding of the interactions between methodology and politics among religious freedom theorists. First, has this conceptualization [a division of the field methodologically into monists, skeptics, and pluralists] of the field ever been correct? Has the role of politics been as complicated and unpredictable as it suggests?
If it has captured a measure of the truth, a second question is whether it still usefully describes the literature, or whether we are witnessing a realignment. Certain debates have moved to the foreground — such as the conversation over whether religion deserves special constitutional protection as compared to deep secular commitments of conscience — and positions within those debates do not seem to be easily captured by the old typology. Yet those positions do seem to track wider political affinities more readily than did the customary choice among monism, pluralism, and skepticism. For example, liberals tend to think that religion is not special, conservatives usually argue that it is, and moderates believe that it only sometimes should be protected like secular conscience. Does this shift, if it is happening at all, suggest a different kind or degree of politicization within the field of religious freedom theory? Is any such shift clarifying or obfuscatory?
The third is an interesting comment by Eduardo Peñalver on a post about the recent Times story on Stanford Law School's new religious liberty clinic. In response to my comment, Eduardo writes:
Marc — I’m not sure. I don’t know that I agree with Nelson that we are seeing a realignment in the academy. There are a few prominent people arguing that religion is not special (esp. Schragger and Schwartzman), but there were a few prominent people arguing the same thing a decade ago (Eisgruber and Sager). I’m not sure I see a consensus of liberal constitutional scholars coalescing around that position. On the political side, there are partisan disagreements now about some borderline free exercise claims (the contraception mandate and some issues related to recognition of gay marriage), but there seems to me to be a bipartisan commitment to broad free exercise rights. It seems to me that there have been efforts on the right to make religious freedom an ideological issue (accusing Obama of a war on religion, etc.), but i don’t think these have been successful in creating a realignment on the issue. The way I see it, there are lots of religious people and lots of people who care about religious liberty on both the left and the right.
Do any, or all, of these accounts ring true for readers? Are some more persuasive than others? Are all wrong, or only half right? Comments are open.
"Mounting Religious Restrictions in Europe"
Over at the site of the (excellent) Religious Freedom Project (a project of Georgetown's Berkley Center), Roger Trigg has a very informative essay called "Canary in the Coal Mine," in which he discusses four recent decisions handed down by the European Court of Human Rights. Here is his concluding paragraph:
Certainly, as is recognised in the case of conscientious objection in a time of war, it is the mark of civilised society to respect a conscientious stand, even if it is thought misguided. Whether freedom of religion can be simply replaced by an appeal to individual conscience is much more doubtful. Religion seems to be itself of deep importance in human life, and should be cherished. It has a social dimension, with institutional, as well as individual, aspects. What is quite clear is that once freedom of religion is not thought to be of absolutely fundamental importance in a society, but can give way to current social priorities, freedom of conscience also is challenged. Religious freedom, itself, is very hard to prise apart from the most basic freedoms that make any life worth living. It is regrettable that current European jurisprudence does not appear to take this point seriously.
Wednesday, January 23, 2013
Associate Justice Antonia Clarentia Ligouri: A(nother) response to Cathy Kaveny
In this post -- continuing her discussion of the HHS mandate and the RFRA and constitutional challenges to it -- Cathy reminds us of some important questions that arise in the deployment of First Amendment doctrine and in the enforcement of RFRA, namely, that (a) courts have to confirm that the challenged government action does place a "substantial" burden on religious practice (this does not, in the caselaw, mean "huge" or "crushing", but I agree with Cathy that it would exclude trifles and trivia) and that (b) courts have to decide whether the government interest purportedly justifying that burden is "compelling" (or some other evaluative word). And, as she discusses, it is an interesting and important the extent to which courts should defer to the claimant (on (a)) and the government (on (b)).
In practice -- in order to avoid, probably, the risk of conflating judges' views of a policy's merits with the "compellingness" (for doctrinal purposes) of the government's interest -- what courts often (and, I think, reasonably) do is to assume for the sake of argument that the interest the government holds out as "compelling" really *is* compelling (unless it's obviously illegitimate or impermissible), and then inquire about the "fit" -- the "tailoring" -- between the burdensome regulation and the asserted state interest. And, when laws are invalidated via the application of this method, it is very rarely because the interest is identified by the court as not-compelling. It is, instead, because the "fit" is poor -- it's "underinclusive", say. This poor fit serves as a signal that (i) the *government* doesn't *really* think the interest is all that important (because it has pursued it so half-heartedly, perhaps in a way that fails to spread the burdens of the policy fairly), or (ii) that the asserted interest isn't *really* the government's aim (i.e., the bad fit exposes a bad motive).
I think that those of us who think the mandate RFRA think so not so much because we think a court will and should hold that "increasing access to contraception is not, in fact, a compelling public interest, because contraception is immoral", but instead think that "the burden on religious practice is unnecessary, because the government's interest could have been achieved by less burdensome means and because the government's willingness to exempt so many employers from the mandate calls into question the claim that the *government* believes the interest is really compelling."
Unconditional forgiveness
I was quite moved by Paul Horwitz's reaction to Eugene Volokh's paean to hatred. The moral emotions are complex phenomena and not always under our control. Proper love of self, however, requires that, when we have suffered an offense, we try to overcome the hatred we understandably feel with love in the form of forgiveness, and without precondition. Forgiveness does not entail reconciliation, and sometimes proper self-love will preclude reconciliation with the forgiven offender. I have defended the obligation of unconditional forgiveness from a Thomistic virtue-theoretic perspective here . Forgiveness is not supine. It is an act no one can perform for us, and it is an act that conforms us to what we have received from the God who has forgiven us our trespasses and debts.
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