Our readers might be interested in Joseph Bottum's blog post on Ralph McInerny (1929-2010).
Eternal rest grant unto him O Lord, And let perpetual light shine upon him.
Friday, January 29, 2010
Ralph McInerny RIP
Citizens United
Something fundamental is being
overlooked in all the brouhaha about SCOTUS’s decision in Citizens United,
and it is this: Unless one assumes—arrogantly
assumes—that there is only one reasonable position on the First Amendment issue
in the case, namely, one’s own position (“Be reasonable. Think
like I do.”)—if one acknowledges that rational, well informed persons of good
faith can *reasonably* disagree about the First Amendment issue—then SCOTUS
should have left the federal legislation alone. Why?
For the compelling reasons famously expressed by James Bradley Thayer in his classic
article in the 1893 Harvard Law Review:
“The Origin and Scope of the American Doctrine of Constitutional
Law”. That point
constitutes a powerful rebuke--indeed, probably the most powerful rebuke--to those members of the majority
in Citizens United who claim to be apostles of judicial
self-restraint. Look, I'm
consistent: I think there's no excuse for the Court's truly imperial decision
in Roe v. Wade! See my Constitutional Rights, Moral Controversy,
and the Supreme Court (Cambridge, 2009).)
Who is David Novak ... and why does it matter?
David Novak, who taught at the University of Virginia and now teaches at the University of Toronto, is an acclaimed Jewish scholar; he is also, inter alia, a sometime contributor to First Things (e.g., here and here). It bears mention that Novak dedicated his recent book on religious liberty--which in December Rick Garnett reviewed for First Things (here)--to Robert George.
Yesterday, my copy of Martha Nussbaum's new book arrived in the mail: From Disgust to Humanity: Sexual Orientation and Constitutional Law (Oxford, 2010). I was interested to see a blurb by David Novak on the back of the book:
"Those of us holding more traditional views of marriage need to take this book very seriously because in it [Nussbaum] makes the best case for the innovation of same-sex marriage I have ever seen or heard. And here again she argues in a civil, rational manner that in no way demeans or dismisses those of us who are very much on the other side of the issue, an issue that will still be publicly debated long into the foreseeable future."
Here is how Publisher's Weekly describes Nussbaum's book:
"A meticulous consideration of the legal issues surrounding same-sex relations grounded in a far-reaching investigation of how the notion of disgust has determined both civil legislation and public opinion. Identifying a politics of disgust that centers on irrational fears of contamination, penetrability, and loss of social solidarity, Nussbaum (Hiding from Humanaity) opposes such problematic foundations for legislation with her own notion of a politics of humanity, based on the need for imaginative engagement with others. Linking imagination with America's founding principles of equality and respect, the author vindicates sexual orientation rights as instrumental to the pursuit of happiness, before engaging with contentious rulings on same-sex marriage, sodomy, and discrimination. An elegant and eloquent defender of sexual freedom, the author is at her best describing the insidious role of disgust in law. However, her frequent recourse to John Stuart Mill would seem to demand a more detailed defense of his ideas on harm, and her reflections on marriage add little to the debate. Nonetheless, as the recent public discourse about empathy among Supreme Court judges indicates, Nussbaum's passionate advocacy of the power of imagination is profound and timely."
So much to read: Vischer, Keenan, Nussbaum, ... I guess that's what summers are for.
Conscience and the Common Good
For those of you unwilling to commit to buying a book unless you've had the opportunity to read an overview of its argument, I've posted an essay that lays out my book's thesis. The essay is taken from a mini-symposium on the book to be published in the Journal of Catholic Legal Studies. Here is the abstract:
Our longstanding commitment to the liberty of conscience has become strained by our increasingly muddled understanding of what conscience is and why we value it. Too often we equate conscience with individual autonomy, and so we reflexively favor the individual in any contest against group authority, losing sight of the fact that a vibrant liberty of conscience requires a vibrant marketplace of morally distinct groups. Defending individual autonomy is not the same as defending the liberty of conscience because, while conscience is inescapably personal, it is also inescapably relational. Conscience is formed, articulated, and lived out through relationships, and its viability depends on the law’s willingness to protect the associations and venues through which individual consciences can flourish: these are the myriad institutions that make up the space between the person and the state. This essay is taken from my new book, Conscience and the Common Good: Reclaiming the Space Between Person and State (Cambridge Univ. Press 2010). The book seeks to reframe the debate about conscience by bringing its relational dimension into focus.
Thursday, January 28, 2010
Fordham Announces Celebration of Penalver and Katyal's New Book
The spring 2010
Natural Law Colloquium will take place on Thursday, February 4, at 6:00 pm in
the McNally Amphitheatre of Fordham Law School. Our speakers will be
Professor Eduardo Penalver (Cornell Law School) and Sonia Katyal (Fordham Law
School), and our topic will be: "Property Outlaws: On Ownership, Law,
Morality, and Disobedience". With this event, we aim to celebrate
the recent release of a new book by Professors Penalver and Katyal
("Property Outlaws: How Squatters, Pirates, and Protesters Improve the Law
of Ownership"), and also address a host of issues raised in that book
(e.g., the nature and limits of private property ownership, the imperatives of
social justice, the possible justifications for civil disobedience and
stealing, etc.). This event is free and open to the public.
Difficult Realities of Engaging the Abortion Debates
Some of the comments on Rob's post about the reaction to the pro-life ad at the Superbowl touched on a reality about the abortion debate of which I am always acutely aware whenever I'm speaking about abortion -- the fact that, statistically, so many people in the audience are likely to have had abortions. It's also something that I always think about when I see an odd reaction by someone when I'm out and about with my son, who has Down Syndrome. Are those odd reactions hurtful expressions of discomfort with his condition or his "otherness", or are they instead expressions of hurt based on a decision that person may have made in his or her own life? Those are such difficult realities to accommodate when figuring out how to engage in the abortion debate.
So here's something more positive: A website that my brother brought to my attention, as a resource for parents faced with a prenatal diagnosis of a disability: Be Not Afraid!
Christian Realism Presentations Now Available On-line
Video and audio of the excellent presentations at the Murphy Institute's November symposium on "Christian Realism and Public Life: Catholic and Protestant Perspectives", are now available online here. They include the plenary presentations by Jean Bethke Elshtain, Gerry Bradley, James Johnson, John Carlson, Robin Lovin, Jeanne Heffernan Schindler, David Skeel, and Bill Cavanaugh, as well as many of the interesting concurrent sessions.
The Individual in John Paul II's Personalism
Many thanks to Fr. Araujo for his insightful and moving description of moral theology. I want to take the opportunity to suggest the complexity and nuance of John Paul II's personalism by expanding on one point. When John Paul II was critical of "individualism," he was not devaluing the person in any way. Quite the contrary. For him, the uniqueness of each person is tied to the imagio dei and thereby to the intrinsic dignity of the person. He used the term "individualism" to refer to what he believed to be an error in contemporary thought. By viewing the individual as essentially an autonomous consciousness, the modern conception is blind to the unique essences of individual persons. John Paul II argued that the person must be understood as a union of being and action (suppositum). Traditional metaphysics explores objective being. But, the subjectivity of human action must also be understood. Human acts are unique when they results from the capacity to reflect on lived experience, and for this reason John Paul II argued that the unique essence of each person is a dynamic interplay of subjective and objective. Contemporary "individualism" reduces the person to an atomistic subjectivity, self-aware of its own mental objects (*intentionality"). Kenneth Schmitz calls this the "secularization of the interior." It is a distortion of human nature. Part of what is lost in the reduction are the capacity for ineffable experiences--ones that have no particular mental object (like a generalized feeling of joy), and the capacity to be aware of absences that point beyond the mundane (as when St. John of the Cross speaks of the "darkness of God"). John Paul II's moral theology sought to bring together traditional metaphysics and an account of the subjective that included the non-intentional in a complete moral anthropology. He celebrates the uniqueness of each person, while recognizing the common metaphysical structure of human nature.
United States Conference of Catholic Bishops
3211 FOURTH STREET NE • WASHINGTON DC 20017-1194 • 202-541-3000
WEBSITE: WWW.USCCB.ORG/HEALTHCARE • FAX 202-541-3339
January 26, 2010
United States House of Representatives
Washington, DC 20515
Dear Representative:
On behalf of the United States Conference of Catholic Bishops (USCCB), we strongly urge
Members of Congress to come together and recommit themselves to enacting genuine health care
reform that will protect the life, dignity, consciences, and health of all. The health care debate, with
all its political and ideological conflict, seems to have lost its central moral focus and policy priority,
which is to ensure that affordable, quality, life-giving care is available to all. Now is not the time to
abandon this task, but rather to set aside partisan divisions and special interest pressures to find
ways to enact genuine reform. Although political contexts have changed, the moral and policy failure
that leaves tens of millions of our sisters and brothers without access to health care still remains. We
encourage Congress to begin working in a bipartisan manner providing political courage, vision, and
leadership. We must all continue to work towards a solution that protects everyone’s lives and
respects their dignity.
The Catholic bishops have long supported adequate and affordable health care for all,
because health care is a basic human right. As pastors and teachers, we believe genuine health care
reform must protect human life and dignity, not threaten them, especially for the most voiceless and
vulnerable. We believe health care legislation must respect the consciences of providers, taxpayers,
and others, not violate them. We believe universal coverage should be truly universal and should not
be denied to those in need because of their condition, age, where they come from, or when they arrive
here. Providing affordable and accessible health care that clearly reflects these fundamental
principles is a public good, moral imperative, and urgent national priority.
Whatever the legislative process and vehicle, the U.S. Catholic bishops continue to urge the
House and Senate to adopt legislation that:
· Ensures access to quality, affordable, life-giving health care for all;
· Retains longstanding requirements that federal funds not be used for elective abortions or
plans that include them, and effectively protects conscience rights; and,
· Protects the access to health care that immigrants currently have and removes current barriers
to access.
In addition to meeting these moral criteria, restraining costs and applying them equitably across the
spectrum of payers will make this bill more acceptable to more people. Although recently passed
legislation in the House and Senate may not move forward in either of their current forms, there are
provisions in the bills that should be included in—and some that should be removed from—any
proposals for health care reform.
Accessible and Affordable Health Care for All
Health care is a social good, and accessible and affordable health care for all benefits
individuals and the society as a whole. The moral measure of any health care reform proposal is
whether it offers affordable and accessible health care to all, beginning with those most in need. This
can be a matter of life or death, of dignity or deprivation.
The Senate and House bills make great progress in covering people in our nation. However,
the proposed bills would still leave between 18 and 23 million people in our nation without health
insurance. This falls far short of what is needed in both policy and moral terms.
The bishops support extending Medicaid eligibility to people living at 133 percent of the
federal poverty level or lower. However, states should not be burdened with excessive Medicaid
matching rates, particularly during the economic downturn. Cost-sharing and premium credits should
be offered to assist low-income families purchase insurance coverage and to make coverage more
affordable. We urge that the best affordability elements of the House and Senate bills be included.
Protecting Human Life and Conscience
Disappointingly, the Senate-passed bill in particular does not meet our moral criteria on life
and conscience. Specifically, it violates the longstanding federal policy against the use of federal
funds for elective abortions and health plans that include such abortions—a policy upheld in all
health programs covered by the Hyde Amendment as well as in the Children’s Health Insurance
Program, the Federal Employees Health Benefits Program, and now in the House-passed “Affordable
Health Care for America Act.” We believe legislation that fails to comply with this policy and
precedent is not true health care reform and should be opposed until this fundamental problem is
remedied. The bill’s provision against abortion funding should have the same substantive policy as
the Hyde amendment and parallel provisions in current law, should cover every program in the
legislation, and should be as permanent as the funding provided by the bill. The House-passed
language meets these criteria.
The bill passed by the House (and to a lesser extent the Senate-passed bill) recognizes the
need to protect conscience rights on abortion. However, provisions in both bills pose a threat to
conscience that is not limited to abortion. That threat needs to be removed before any final bill is
passed. Current federal law permits the accommodation of a wide range of religious and moral
objections in the provision of health insurance and services. For example, currently insurers are free
under federal law to accommodate purchasers or plan sponsors with moral or religious objections to
certain services. The proposed health care bills would change that by imposing new mandates to cover
certain services as “essential benefits,” including certain specified categories such as “ambulatory
patient services,” “prescription drugs,” and “preventive” services. Within these categories, the bills
designate an Executive Branch official to define what specific services plans must cover. Thus, any
item or service defined as “essential” must be provided—regardless of a conscientious objection on
the part of the insurer, purchaser, or plan sponsor. The freedom that insurers, purchasers, and
sponsors currently enjoy under federal law to offer or purchase health plans that are not morally or
religiously objectionable to them would then be lost. In addition, because the bills give the Executive
Branch the authority to regulate the selection of providers by health plans, these plans may also be
newly required to exclude providers because they have a conscientious objection to particular
procedures.
It is critical that the final bill retain the freedom of conscience that insurers, purchasers, plan
sponsors, and health care providers currently have under federal law. Such a protection would not
amend any other federal law or affect any state or local law, but instead prevent only the new law
from imposing new burdens on conscience. This would not effect a sea change regarding conscience
protection, but instead would prevent one.
Immigrants and Health Care Coverage
We strongly support the position of the House bill that does not prohibit undocumented
persons from using their own money to access the new health care exchange. To proactively prohibit
a human being from accessing health care is mean-spirited and contrary to the general public health.
We also support removal of the five-year ban on legal immigrants accessing federal means-tested
health care plans, such as Medicaid. Legal immigrants, who pay taxes and are on a path to
citizenship, should be able to access programs for which their taxes help pay.
We will continue to work vigorously to advance true health care reform legislation that
ensures affordability and access, keeps longstanding prohibitions on abortion funding, upholds
conscience rights, and addresses the health needs of immigrants. These are not marginal matters, but
essential to real reform. We hope and pray that both the Congress and the country will come together
around genuine health care reform that protects the life, dignity, consciences, and health of all.
Sincerely,
Bishop William F. Murphy
Diocese of Rockville Centre
Chairman
Committee on Domestic Justice
and Human Development
Cardinal Daniel DiNardo
Archdiocese of Galveston-Houston
Chairman
Committee on Pro-life Activities
Bishop John Wester
Diocese of Salt Lake City
Chairman
Committee on Migration
Wednesday, January 27, 2010
Not judging a book from its cover and promotional announcement
I, too, join those who look forward to discussing Fr. Jim Keenan’s new book, A History of Catholic Moral Theology in the Twentieth Century—From Confessing Sins to Liberating Consciences. Perhaps we at the Mirror of Justice may discuss his book after we have discussed Sister Margaret Farley’s Just Love. I am confident that the Keenan book will provide an abundance of grist for our dialogue as we consider his thoughts on moral theology. I am not sure that I would agree with the promotional material’s statement that moral theology has been replaced by the term “theological ethics” especially when one considers the continuing impact and vitality of Veritatis Splendor. After all, the teachings of the Second Vatican Council, which specifically exhorted Catholic scholars to exert special care to renew moral theology, cannot be misplaced, forgotten, or abandoned as John Paul II reminded us.
And what is this moral theology? We might consider as a beginning to answering the question that it is the consideration by the human person through the gift of right reason of the path (1) to pursue in one’s life toward the absolute truth who is God and (2) to perfect one’s life in accord with His desires for each person. The study of moral theology is, therefore, the avenue travelled by those who claim to be true in discipleship to Jesus Christ. It is the individual and communal reflective examination and appropriation of the moral teachings constitutive of the deposit of faith—the doctrine that guides us in living in right relation with God and with our neighbor, whoever the latter may be. It is, moreover, a proper exercise of authentic human freedom to be open to and cherish the wisdom of God which is essential for discerning right from wrong, truth from falsehood and for charting that course to do what is in accord with teachings that help us to do good and to avoid sin and sinful tendencies.
In this enterprise of moral theology it is vital to recall that not all interpretations of the morality permeating the deposit of faith are sound moral teachings. This becomes evident as the problems with consequentialism and proportionalism surface. So, in order to avoid such problems, it is typically useful to consider how does one exercise right reason to go about charting the course of doing that which is good and avoiding that which is sinful? Again we might return to the Second Vatican Council and one of the fundamental questions it raised: quid est homo? (What is man, what is the human person?) By entertaining this question we encounter another one: what is the meaning of human life including its destiny? Well, for Catholics, it is union with God, but to achieve this union, seeking and living the moral life that essential to the dignity and nature of the human person are essential. But here we must take stock of the fact that the Church’s moral teachings remind us that if we consciously persist in our sins without seeking reconciliation with God and neighbor, the quest for the moral life will fail not because of God’s desire but because of the human will.
Of course, human freedom and the exercise of the well-formed conscience are also vital to the salvation promised to those who pursue the moral life and the truth about human existence who is God. Here it must be recalled that freedom is not the absolute, subjective desire which the individual wishes but the freedom to choose consciously what God asks, i.e., union with Him. This line of thought seems to be absent from the Keenan book’s promotional statement, but it may well be in the book. Looking at some of the chapter headings, I do wonder if the sense of truth who is God is replaced with the contemporary substitute for truth which often manifests itself in a phrase such as “contemporary standards”? If contemporary standards are the touchstone for defining what is moral or ethical, then the truth about our human nature and destiny may well be displaced by a subjective conscience who knows not God but only the self. If this be the case, we ought to ponder the counsel of John Paul II that “this individualism leads to a denial of the very idea of human nature.” Christian freedom cannot be based on the autonomy of the isolated self; rather, it must incorporate the other who is God. Therefore, the Christian moralist must eschew the ethical order that has its sole base in human origin and the views endorsed by the surrounding or popular culture and endorse the one that is committed to the path of salvation—the path which surely begins but does not end in this world.
The final point for this posting follows: the Christian moralist, like any Christian, must be a person of prayer. What prayer might be appropriate to the Christian as he or she engages in the dialogue about Fr. Keenan’s book? Perhaps this one: Lord have mercy on me, a sinner. It is a prayer that reminds the person who he or she is and where he or she is going as one travels the road to God.
RJA sj
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