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 20, 2011

the layman keeps things under surveillance

I am by no means the first to mention this, but the widening phenomenon of blogging bishops is really getting me down.  If a bishop has an expertise on, say, Shakespeare, beef bourguignon, or golf, for example, then I perceive no necessary problem with his blogging about it, though I can imagine some questions that could be raised.  My immediate concern is with bishops' undertaking -- or appearing to undertake -- to exercise their teaching office through the medium of the blog.  It's not electronic media per se that I'm concerned about; it's the blog format in particular.  Eduardo's link to Archbishop Dolan's blog prompted me to check it out.  The comments in reply to the Archbishop's statement there begin with things like "Mr. Dolan," and it gets much, much worse.  By "worse" I don't refer to the fact of disagreement as such; the disagreement was to be anticipated, alas.  The problem I have in mind is this: the way the dialogue is conducted -- indeed, invited -- confirms the hoped-for perception by many that the bishop's voice is one among countless equal voices in the usual sort of chatter that is familiar on blogs.  I concede that the Church's authoritative teachers have difficult choices to make about how to use modern media to advance the work of the Word Incarnate, but I'm increasingly doubtful that authoritative teachers' blogging about, say, the just wage or the nature of marriage will do more to advance the Church's teachings on either of those questions than it will do to undermine the authority with which the Church in fact teaches.  I have great admiration for Arch. Dolan.  When I have been around him, I have been impressed by the strength of his exercise of his teaching office.  I hope I am wrong about the long-term effects of the blogging.  Though it involves a more serious venue, I would note that the Holy Father himself, by reducing himself to the status of a mere interviewee in the recent book Light of the World, created considerable difficulties concerning what the Church was teaching there, if anything, on the topics the Holy Father discussed with Mr. Seewald.  Those who seek the Church's authoritative teachings will not have reason to believe they find them in blog exchanges or in interviews, and it is perfectly plain that many of those commenting on Arch. Dolan's blog already treat his voice as just one among an endless babel.  Which reminds me of something I read recently about where Ockhamism leads in terms of ecclesiology:  "Under these conditions, it would be more frank to say, as Luther would say later, that there is not and there cannot be any doctrinal authority in the Church other than the letter of the Bible as clarified by the Holy Spirit.  Ockham only goes part of the way.  He maintains the principle of authority, but so well ruins the substance of it that its recognition is nothing other than an occasion to organize a distrust, suspicion, and, if need be, the revolt of the Christian in the face of it.  The doctor teaches, controls, and condemns the pontiff.  The layman keeps things under surveillance and, if necessary, punishes the doctor, the cleric, the bishop, or the pope.  In the name of the faith, one justifies an anarchic and disordered activism of the entire ecclesiastical body, and the logic of the system forbids any institution within it whatsoever from controlling it efficaciously.  If there were any reforming ferment that Ockham set into motion in the Church, it was indeed through his theory of the doctrinal magisterium that, while claiming to safeguard the principle of all traditional institutions, irremediably undermines the base of them." 

Hosanna-Tabor

MoJ-ers Tom Berg and Rick Garnett have filed an amicus brief with the Supreme Court in Hosanna-Tabor (the ministerial exception case) on behalf of the Christian Legal Society, the Baptist Joint Comittee, the National Association of Evangelicals, and others.  This is an important case, and whether or not you have followed the proceedings, the brief is well worth your time.

Dolan on Gay Marriage

[Cross-posted at dotCommonweal)  Archbishop Dolan's blog refuses to take Father's Day off from the crusade against gay marriage.  I applaud Dolan's embrace of the blogging medium, and Dolan's posts have attracted a great deal of media attention, but I wish he would put more thought into his posts on this topic.  I think it would be a much more powerful use of the medium, and would be helpful for those of us struggling to understand the Church's state of panic in the face of gay marriage, if he would engage in a more detailed way with the arguments on both sides of this issue.  One searches his posts in vain for  reasoned argument, finding instead a series of conclusory zingers like the one with which he ended his most recent post.  "Government presumes to redefine these sacred words at the peril of the common good."  How does expanding the definition of the family to encompass same sex couples threaten the common good?  Dolan doesn't tell us.  His post simply ends.

I looked back at his earlier post, and it also fails to adequately explain his views, except to tell us that the family is the foundation of our civilization  and that tinkering with its definition is dangerous.  I suppose I agree with both of those points, but neither one rules out same sex marriage.  After all, the definition of marriage varies across time.  Polygamy is approved in the Bible, though it is now illegal.  Dolan doesn't discuss that, despite his reference to Genesis in his most recent post.  Divorce used to be prohibited but no-fault divorce is now ubiquitous.  Interracial marriage was legally forbidden in many US jurisdictions until just a generation ago.  Now it is constitutionally protected.  Telling us that revising the definition of the family is dangerous either means that all of these past changes were wrong or that, more likely, some were better than others.  But if it means the latter, it adds nothing but a cautionary note to the present debate.  It cannot be decisive.

Indeed, Dolan himself can hardly make up his mind on the subject of marriage's meaning.  In this two posts on the subject, he tells us that traditional definition of marriage is "timeless" and "as old as human reason and ordered good."  And, yet, in his two posts, separated only by four days, Dolan himself actually gives us THREE different definitions of marriage.  In his first post, he says that marriage is "one man, one woman, united in lifelong love and fidelity, hoping for children."  His second definition, in the same post, is similar but not identical:  "a loving, permanent, life-giving union to pro-create children." In his Father's Day post, he says that marriage is a "loving, faithful union between one man and one woman leading to a family."

Of course, marriage has not been "lifelong" or "permanent" by law for a long time, and yet no blog posts urging NY legislators to prohibit divorce as a grave threat to the common good.  Perhaps someone pointed this out after the first post, which might explain why he dropped any reference to duration in the most recent post.

As for procreation, "hoping for children" and "to pro-create children" are far from identical.  Both might be read to rule out marriages among the non-fertile, though the "hoping for children" formulation is less exclusive on that front.  But this leads to the question -- which is it to be?  Does the marriage of two 80-year-olds threaten the timeless definition of marriage or undermine the common good?  If not, why not?  In his most recent definition, the reference to procreation is replaced by "leading to a family."  Of course, this is somewhat circular, since legal recognition of same-sex couples as "families" would allow their unions to also "lead[] to a family."  That's the whole point.

These blog posts were useful opportunities for some thoughtful reflection on these questions, but the Archbishop chose instead to write little unconvincing screeds aimed at producing nice sound-bites for the press.   Those who agree with him will no doubt take heart from his vocal opposition to New York's proposed legislation.  For the rest of us, we are no better able to understand the foundation for his fears than we were before.

Saturday, June 18, 2011

A joint letter against porn on campus

Mercifully, Princeton has not followed Yale's degrading example of celebrating "Sex Week" on campus.  From time to time, however, campus organizations have sponsored pornographic exhibitions. In response to one of these, Cornel West and I wrote to Shirley Tilghman, Princeton's president, to urge the University to oppose the presentation of pornography on campus and to deny requests for the use of University faciities for pornographic activities.

Dear Shirley:

As you know, we are strong advocates (and practitioners) of freedom of speech, especially in the context of university education where the exploration of ideas and the exchange of reasons and arguments are vital to the success of the enterprise.  We would defend the right of any member of our community to express and make reasoned arguments for any view, even if we regarded the view as reprehensible and judged the arguments to be poor or fallacious.  For example, we would defend the right of anyone to argue that pornography is psychologically healthy and morally liberating, despite our judgment that pornography is, in fact, degrading, damaging, and incompatible with a sound understanding of men and women as possessors of profound, inherent, and equal dignity.  However, we think that the judgment that pornography is, in truth, de-humanizing and de-personalizing, and in these and other ways damaging to individuals and communities, does matter in some ways that are relevant to University policy decisions.  In our judgment, the University should do what it can do to prevent, or at least to discourage, the identification of Princeton University with the dissemination of pornography and the use of University facilities and other resources for showing pornography.

We recognize that there are borderline cases as to what counts as “pornography,” and we would be happy with a policy that erred on the side of freedom.  But there are clear cases as well.  Indeed, there are cases where what is expressly being proposed is to screen or display pornography under the auspices of University-affiliated entities using campus facilities and resources.  We believe that the common good of our community is poorly served when such proposals go forward.  They contribute to an environment of objectification and de-humanization.  They impoverish our efforts to instill in our students a sense of the profound worth and dignity of the human person and the need for true self-respect and respect for others.

In our view, Princeton has no obligation, as a matter of academic freedom or otherwise, to make its facilities available for pornographic activities, and would be not only within its rights, but right, to refuse to do so. Yet, even if a libertarian impulse were to stand in the way of forbidding the use of University facilities for pornography, we believe it would be extremely valuable for the University to go on record as opposing the presentation of pornography on campus, lest anyone believe that it is the University’s policy to treat the screening or other exhibiting of degrading and dehumanizing material as something perfectly legitimate.

Yours in friendship,

Cornel West

Robert George

Friday, June 17, 2011

Catholicism and political categorization

Thanks to Rob for his interesting post about Archbishop Nienstedt's coming under attack from some folks on the right edge of the political spectrum for advocating "socialist" policies.  It has long seemed to me that being a Catholic means that certain positions at the extremes of the spectrum are off the table.  One cannot be a socialist, strictly speaking.  The Church's strong endorsement of private property eliminates the option of supporting state ownership of the means of production and also rules out (in most circumstances) radically redistributive policies.  At the same time, being a Catholic is incompatible with being a radical individualist or "libertarian" of the Ayn Randian sort.  (To her credit, I suppose, Rand herself understood this, though some of her disciples, including some Catholics who seem to have fallen under her influence, don't seem to have noticed it.)  The Church's teaching on the preferential option for the poor is only one of many principles placing Catholicism radically at odds with Randianism.

So whether it is a union rally in Madison, Wisconsin or a tea party in Doylestown, Pennsyvania, Catholics in attendance ought not to be wearing Che Guevara tee-shirts or waving Ayn Rand placards.

But, to get back to Archbishop Nienstedt, he would be the first to affirm (just ask him) that his own views on budgetary matters, the provision of social services, and the like necessarily include prudential judgments that are not themselves dictated by definitive teachings of the Church.  He would not maintain that his fellow Catholic citizens of goodwill who have, on reflection, arrived at different judgments (while affirming core moral principles, such as the obligation to design and maintain a system in which the welfare of the poor is attended to in a way consistent with their full humanity and equal dignity) have broken communion with the Church or placed themselves in opposition to its teachings.

At the same time, I'm sure the Archbishop would say that Catholic legislators, for example, or citizens voting in a referendum or engaging in public advocacy, who seek to deny to any class of human beings (the unborn, let us say, or the severely cognitively disabled) the law's fundamental protections against killing, have broken communion with the Church. They differ with the Archbishop not merely in respect of judgments he has made on which his fellow Catholics and other men and women of goodwill can reasonably disagree while maintaining fidelity to the principles of justice solemnly proclaimed by the Church; they have placed themselves in opposition to those principles of justice.  They have broken faith on the Church's fundamental teaching that every member of the human family, irrespective not only of race, sex, and ethnicity, but also irrespective of age, size, stage of development, cognitive capacity, and condition of dependency, possesses inherent dignity and an equal right to the law's protection against lethal violence.

Wilson Carey McWilliams

MOJ readers will want to check out the newly published two volumes (here and here) of Wilson Carey McWilliams's collected essays edited by Patrick Deneen and McWilliams's daughter, Susan McWilliams. Patrick has posted a reflection on McWilliams and the introduction to one of the volumes here. The Democratic Soul: A Wilson Carey McWilliams Reader includes "Critical Rebound: Why America Needs a Catholic Recovery," which is based on a lecture McWilliams (who was a Protestant) delivered at Boston College in 2003:

Begin with the Augustinian truth: The Church, like its rivals, aspires to speak of and for the City of God, but it must speak in and to the City of Man. The transcendent is its reason for living, but it must live in order to fulfill that reason. Compelled to adapt to the temporalities, religion must also be watchful lest it become simply a function of time and place. If a church accommodates too much to society, it loses its distinctive character, and along with it any strong sense of community or claim on the identity of its members. But if it makes the social cost of membership too high, a church risks shrinking to the dimensions of a sect. At least implicitly, religion bargains with society, distinguishing between the first principles that are the perennial heart of its faith and the teachings and disciplines that it can de-emphasize or abandon in response to new circumstances.

The current clergy sex abuse scandals represent the most severe crisis in the history of the American Church, calling, in some measure, its bargains with society and with its own membership into question. American Catholics must hope for a season of atonement, knowing that this will bring turbulence and pain. Yet all Americans have a stake in the outcome: The Church’s future in this red-dawning century is inseparable from that of the republic.

Abp. Nienstedt embraces socialism

Like many states, Minnesota is having a major political brawl over the budget.  Archbishop Nienstedt, who has spent most of his time here taking heat from the left over his views on marriage, is now getting some heat from the right for advocating "socialist" policies.  GOP state senator David Hann accused the Archbishop of endorsing "the socialist fiction that it is a moral necessity to take the property of the 'wealthy' under the assumption that those resources are better used by politicians and bureaucrats than by the individuals who earn them." For good measure, Sen. Hann threw a quote from R.R. Reno at the Archbishop proposing that the problem with the American poor is primarily moral, not financial.  Despite our ongoing efforts, Church teaching continues to defy easy political categorization!

Thursday, June 16, 2011

US Bishops Approve Statement on Assisted Suicide

Here is the statement ("To Live Each day with Dignity") on assisted suicide that the US Bishops approved today. Here is a brief comment I made on the University Faculty for Life blog:

The statement provides a useful summary of the problems posed by the campaign to legalize assisted suicide. The Bishops advocate “the way of love and true mercy” (a phrase they borrow from Pope John Paul II), a way “anchored in unconditional respect for …the human dignity [of patients], beginning with respect for the inherent value of their lives.”

Richard M.

Indeterminate Sentencing, Rehabilitation, and Imprisonment

The Supreme Court today decided Tapia v. United States, a decision interpreting 18 U.S.C. section 3582(a).  The issue had to do with the permissibility of the imposition of a term of imprisonment specifically for the reason that it would advance the function of rehabilitation.  The language in question is this: "The court, in determining whether to impose a term of imprisonment, and, if a term of imprisonment is to be imposed, in determining the length of the term, shall consider the factors set forth in section 3553(a) to the extent that they are applicable, recognizing that imprisonment is not an appropriate means of promoting correction and rehabilitation." 

The portion of Justice Kagan's majority opinion interpreting the language of the statute is worth reading for itself, but of even greater interest to me was the earlier discussion of the history of American federal sentencing.  I had not realized sufficiently that rehabilitation was perhaps the most crucial aim of the indeterminate sentencing system which was in place in the U.S. before passage of the Sentencing Reform Act -- in fact, that rehabilitation was thought to be fundamentally tied to indeterminate sentencing.  Historically, that has not necessarily been the case.  That is, (comparatively) indeterminate sentencing schemes have often been supported without any correlative support for rehabilitation as the crucial function of punishment.  The association of rehabilitation with indeterminate sentencing strikes me as a mid-twentieth century American phenomenon.

Also interesting is the simple fact that the SRA prohibits a judge from imposing incarceration for rehabilitative purposes.  This, too, as the amicus pointed out, is quite different than the earlier understanding of the pointedly rehabilitative purposes of incarceration.

Saletan on Cain on Muslims

A few days ago, Robby George challenged Herman Cain to renounce his stated position on Muslims.  Will Saletan expands on the problem with Cain's position.