They are an ignominious
bunch: two Bronx heroin dealers who murdered an informant, a father and
son who killed three people in a drug deal, a Brooklyn gangster hired
in the killing of a husband for the victim’s wife.
These five men are linked not only by the nature of their crimes but
by the fact that federal juries in New York decided that they should
not be put to death.
In the 20 years since the federal death penalty statute was revived,
no federal juries have been more reluctant to sentence federal
defendants to death than those in New York. According to records
compiled by the Federal Death Penalty Resource Counsel Project, which
coordinates the defense of capital punishment cases, federal
prosecutors in New York State have asked juries to impose death sentences 19 times since 1988. In only one case did a jury rule for execution.
Nationwide, federal prosecutors win death penalties about one-third of the time, according to the group’s statistics.
But despite this track record, the cases have not stopped coming: In
Brooklyn alone, there are six more capital cases on the docket this
year, including those of a reputed Mafioso and of two men charged with
killing Guyanese immigrants to collect their life insurance policies.
The first of these trials — of Gilberto Caraballo, a Brooklyn drug
dealer convicted last month of murdering two rivals — will enter its
so-called penalty phase on Monday.
Federal judges in New York have gone so far as to call some death penalty cases a waste of time and money. Last week, Judge Jack B. Weinstein
of Federal District Court in Brooklyn told prosecutors that their
chances of obtaining a death sentence against a drug dealer charged
with dismembering two rivals were “virtually nil” and issued an order
in which he said he was waiting for the Justice Department to
reconsider whether to pursue an execution.
Why the Supreme Court should be irrelevant to Senator
Obama’s candidacy
Douglas W. Kmiec
[Professor of Constitutional Law and Caruso Family Chair in Constitutional
Law, former Dean and St. Thomas More professor of law at The Catholic
University of America; constitutional legal counsel to President Ronald
Reagan.]
Over the past several weeks since writing
several essays suggesting it was appropriate for Catholics and Reaganites to
more carefully examine the candidacy of Senator Barack Obama, I have benefitted
from many thoughtful exchanges. Most recently, Professor Richard Garnett of
Notre Dame finds my interest in Obama to be “misguided” and “supremely odd.” My
error, it seems, is failing to appreciate the significance of appointments to
the Supreme Court as an issue in the presidential campaign. It is not
surprising to me that Republicans and Democrats alike want to highlight this as
an issue because criticizing the Court’s past mistakes (viz. outcomes the
particular writer disapproves) has grown into a major industry and has proven to
be a useful electoral spur to get out the vote.
In his NRO Bench Memo essay of March 5,
Professor Garnett states that he has “no idea” what I meant by suggesting in a
recent essay (“A Prayer from Barack Obama, March 3, 2008) that both sides stop
treating the Court like a “political sinecure.” While we might debate whether
the word “sinecure” captures the intellectual difficulty of Supreme Court work,
scholars have used the term “judicial sinecure” to express concern over the
un-accountability of the modern Court, especially since – unlike the high courts
of 49 of the 50 states – U.S. Supreme Court justices serve without term limit
and in recent times, this has meant an average service in excess of 25 years.
When you add the adjective “political,” aptly reflecting the politicization of
appointment and confirmation – a fact that successful and unsuccessful nominees
have both decried – my point, I think, is reasonably plain: we do not advance
the interests of the rule of law by making the Supreme Court a campaign issue,
no matter who our favored candidate happens to be. It is always fashionable in
law schools to assume the legal realist posture that judges just make the law up
to match their political objectives, but thankfully, it is a precept not yet
indulged by the general public. Moreover, as someone convinced that the law has
a reality apart from what our favored political side may assert at any given
time, (an idea anchored in both the separation of powers and the Natural law
with which Professor Garnett’s institution has an important historical
association), evaluating presidential candidates as an exercise in handicapping
judicial appointments is a fools game.
Some of us actually thought in working to
secure the appointments of John Roberts and Samuel Alito that we were
establishing – rather impressively – a record for evaluating judicial
candidates on the basis of integrity, learning, competence, temperament, and
fidelity to enacted meaning. This seems to me to be the right approach at any
time, but especially advisable when one is about to confront a Senate majority
approaching or exceeding 60 in the opposing party.
Second, while Professor Garnett shares my
admiration for the Supreme Court under John Roberts, he questions whether I
have correctly assessed the direction of the Roberts Court as seeking a lower
profile. Certainly, the Roberts Court is deciding fewer cases (down from 150 in
the 1980s to likely less than 70 this year), and thus by the number of decided
cases alone, having less opportunity to affect the lives of Americans. Yes, the
Court has decided recent cases dealing with abortion, the use of race in public
decision-making, and federalism, but unlike the cases on those subjects during
the Burger, Warren, and even Rehnquist Court eras, the scope of these decisions
is mostly change at the margin. The Roberts Court rebuffed a facial challenge to
a narrowly drawn limitation on one, rather extreme abortion procedure; the
Burger Court created the abortion “right.” The Roberts Court limited the use of
race in a narrow context of a few hundred students; the Warren Court dismantled
separate but equal for millions of children; the Rehnquist Court made a run at
trying to dis-aggregate what is national from what is local responsibility
striking down a statute limiting guns in school zones nationwide; the Roberts
court seems to have given over much of this and related federalism inquiries to
deference to Congress under the necessary and proper clause.
Third, and relatedly, I speculated that the
Court was concentrating on less constitutional decision-making and more narrow
statutory interpretation. I tossed in some additional, light-hearted
speculation about Justice Stevens’ longevity suggesting that it was starting to
rival Biblical ages, and given that, with little prospect for immediate
turnover, “the Court might soon not remember its previous, more activist
history.” I couldn’t get a smile out of Professor Garnett even with this
reference. Instead, he somberly predicted that Justice Stevens good health will
merely push the vacancy into an Obama administration and that would cause the
court to “flip” on issues that he and I both think important, such as “a better
understanding of church-state” relations. Now of course I do wish Justice
Stevens nothing but the best, and I have no idea whether he will outlast
Methuselah (900 years) or only Noah’s precocious son, Shem (600 years), but I am
willing to venture this: an Obama appointee could do no worse on church state
relations than the entirely subjective and unpredictable (10 Commandments here,
but not there), “reasonable observer” standard visited upon this subject by
Reagan appointee Sandra Day O’Connor.
For an all too brief period of time, I was
privileged to be the legal adviser to a presidential candidate who had no
intention of letting some “(un)reasonable observer” strip the United States of
its religious sense and sensibility. Like John Adams, he knew, that our
Constitution “was made for a moral and religious people.” Echoing the sentiments
of Thomas More, he understood that “Americans tire of those who would jettison
their beliefs, even to gain the world.” Mitt Romney did not forego his religious
commitment. Instead, Governor Romney articulated what may be the wisest
statement of the 2008 campaign: “Freedom requires religion just as religion
requires freedom,” he said. “Freedom opens the windows of the soul so that man
can discover his most profound beliefs... .” Freedom and religion endure
together, or perish alone.” Romney’s candidacy would perish within a matter of
months. There were perhaps multiple reasons, but surely one was the consequence
of some of the most shameful religious prejudice in our modern
history.
But that, as they say, is old news. Moving
to the field of candidates as it now exists, it would be enough if our next
president might simply understand that “a sense of proportion should guide those
who police the boundaries between church and state.” This hypothetical president
might actually grasped that “not every mention of God in public is a breach of
the wall of separation – context matters.” Such a commonsense president would
know that: “it is doubtful that children reciting the Pledge of Allegiance feel
oppressed or brainwashed as a consequence of muttering the phrase ‘under God’.”
Indeed, this president with a sense of history about the importance of faith in
American life might know that “having voluntary student prayer groups using
school property to meet should not be a threat, any more than its use by the
high school Republican should threaten Democrats. And this problem-solving
president might even appreciate that “faith-based programs – targeting
ex-offenders or substance abusers – offer a uniquely powerful way of solving
problems” and they can be put in place without offending a single syllable of
the Constitution. Most of all, such a president would understand that “people
are tired of seeing faith used as a tool to attack and belittle and
divide.”
Those are Senator Obama’s words, and I have
to believe that my friend Professor Garnett finds them to be as intriguing as I
do, for they reflect principles of religious freedom to which Professor Garnett
has written eloquently. More than anything else, these sentiments of faith’s
importance to our nation’s well being and prosperity to explain why no amount of
electoral speculation about the unfortunate reality of many to aid and abet the
Supreme Court playing an unauthorized political role causes me to lose interest
in the Senator.
No, my interest is only tempered – and it is
seriously so – by the fact that Senator Obama is also on record supporting
abortion, which my faith instructs is an intrinsic evil that cannot be
justified. There is no finer expression of this objection than that put by
Princeton’s Professor Robert George, thoughtfully brought to my attention by
Emory’s very distinguished legal philosopher Professor Michael Perry. Professor
George makes a good case, that as he sees it, John McCain is less likely to
support legislation enhancing funding for embryonic stem cell research (even
though he is on record supporting such research with “spare,” rather than cloned
embryos) or adding to the public funding of abortion in the United States or
foreign nations.
Professor George’s belief that Senator
Obama’s policies would not reduce the pressure for abortion must be seriously
assessed. In this regard, the American Catholic bishops teach that it is a
voter’s prudential obligation to fully consider how best to reduce the incidence
of a matter of grave evil. While a voter’s intent can never be to lend support
to the killing of the innocent, voters must “not use a candidate’s opposition to
an intrinsic evil to justify indifference or inattentiveness to other important
moral issues involving human life and dignity.” So with due respect to
Professor George, we do need to deduce as best we can whether or not Senator
Obama’s endorsement of both abstinence and contraception (if in form not
implicating abortion) would or would not significantly reduce the occasion for
the taking of innocent life. But, of course, there’s more. There is also the
grave moral question of the killing in Iraq, and the respective policies of
McCain v. Obama. What, for example, are the collateral economic consequences of
what Nobel Prize winning economist Joseph Stiglitz finds to be a “Three Trillion
Dollar War?” Would Senator McCain’s extended deployment of troops so worsen the
prospects for low and moderate income families in the present war-induced
recession in ways that would increase the incidence of abortion?
At the very least, it is not a simple
question of a voter guide that would categorically dismiss a consideration of
Senator Obama as “nonnegotiable.” As Professor Amelia Uelmen , the director of
the Institute on Religion, Law and Lawyers’ Work at Fordham has written: “what
is often at stake in political debate and in the political process is not the
definition of an action as good or evil, but the questions of how to remedy a
given evil in a particular social context. . . . . [D]efining abortion as an
intrinsic evil does not answer the question of how to reduce abortions in our
society.” Certainly, it would not be “supremely odd, “ to think our moral duty
is to pay attention to a candidate like Barack Obama who manifests a serious,
and apparently genuine, understanding of faith and its importance. Catholics or
other persons of faith who undertake this duty will not be able to subscribe to
Senator Obama’s position on abortion and contraception and stem cell research,
but it should not go unnoticed that even in speaking to the Planned Parenthood
organization, he – unlike so many Democrats of the past who have failed to grasp
the depth and the tragedy of abortion on demand -- did not pander. Instead,
Senator Obama reminded his Planned Parenthood audience that he has “two
daughters and he wants them to understand that sex is not something casual” or
to be taught as part of the regular curriculum. “Some of this is legislative,”
he reflected, “but some of this is also having a president who’s willing to talk
about these issues in an honest and responsible way.”
Indeed, some of that honest and responsible
talk is realizing that as people of faith who choose life, it is up to us in our
families and in our churches to make that choice a moral imperative, and in so
doing, to make the Supreme Court of the United States on this issue as
irrelevant as it should have been all along.
I just finished reading a new article by Douglas Laycock, who, after many years at the University of Texas, is now Yale Kamisar Collegiate Professor of Law at the University of Michigan (where his spouse is Provost). The article--titled Substantive Neutrality Revisited--appears in a symposium issue of the West Virginia Law Review: volume 110, pages 51-88 (2007). In the article Laycock defends his position on how the constitutional ideal of religious liberty should be understood.
The article is, in a word, superb. Laycock's clarity is exemplary; and his argument, in my judgment, is utterly compelling, start to finish. Laycock demonstrates--I use the word deliberately--the inferiority of two competing views, one represented by Noah Feldman, the other by Steven Gey. With this article, Laycock has come as close as one can to achieving closure on the questions he addresses.
Do yourself a favor: Get a copy of the article, find a relaxing venue, and read it!
Many MOJ readers will be familiar with the great sociologist of religion, Robert Bellah. Here's how Commonweal identifies him: "Robert N. Bellah is professor of sociology emeritus, University of
California, Berkeley. Among his many books, he is coauthor of Habits of
the Heart (University of California Press)."
Yes He Can: The Case for Obama
Robert N. Bellah
This year’s presidential election is surely
one of the most important in recent history. After more than seven
years of the most incompetent administration in American history, it is
time for a change. The question is, What kind of change?
Before trying to answer that question, let me
put my cards on the table: I am highly partisan. I have never voted for
a Republican in my sixty years as a voter. I have on rare occasions
voted for a third-party candidate, but on the whole, often as the
lesser evil, I have voted for Democrats. Although I think I would have
done the same wherever I lived, I must also confess that I am
conformist in terms of my immediate environment. It is rumored that
there are Republicans in Berkeley, but no one knows who they are: they
are perhaps a secret society. Voting consistently for Democrats makes
one something of a conservative in Berkeley terms. I suspect if I had
lived in Cambridge, Massachusetts, as I did for the first twenty years
of my academic life, it wouldn’t have been much different.
I must also confess that I am highly partisan
in the present Democratic primary race. I have a high regard for both
Clintons and I believe Hillary Clinton is a strong candidate. But
Barack Obama has stirred my political hopes like no one since Franklin
Roosevelt. Yes, I am old enough to remember Roosevelt. He became
president when I was five years old and died when I was eighteen. Even
as a child I was partisan and, while too young to know enough to
support him in 1932, I did strongly support him in 1936, 1940, and
1944, though I was not yet old enough to vote.
Hearing Obama give the keynote address at the
2004 Democratic National Convention was one of the most electrifying
experiences of my political life. “Who is this person?” I thought. How
is it possible for anyone today to formulate the very best of the
American tradition in such eloquent terms? (Needless to say, with a
sense of the centrality of rhetoric to the Western political tradition
from Aristotle and Cicero to Jefferson and Lincoln, I have never
accepted the derogatory use of the word. I believe that speaking well
and thinking well usually go together, and vice versa, as the incumbent
president so vividly illustrates. It will be easier for John McCain to
attack Obama’s “rhetoric” than to equal it.) Recently going over my
2007 checkbooks for tax purposes, I noted that I wrote a check to Obama
for America on February 10, 2007, which was the very day he announced
his candidacy. What impressed me during the last long year of
campaigning was not so much his stand on particular issues (I generally
agree with him, though on health care I think Clinton’s plan may be
slightly better); it was the way Obama framed where we are today and
how we can move to a better place. In other words, what I first heard
in 2004 has only become clearer in the past year: Obama, like no one I
have heard in a very long time, understands our political tradition,
how it has been distorted in recent years, and how we can return to it
at its best. I know Obama talks a lot about hope, but that is what he
has given me: hope, when I had begun to believe that the situation in
my country was hopeless.
I believe both Clintons have read Habits of the Heart and The Good Society,
because they have told me that they have, and I believe Hillary Clinton
would try to put into practice some of the things that I and my
coauthors were talking about in those books. I have no reason to
believe that Obama has read the books, yet he has caught their spirit
in a most remarkable way and expressed it more eloquently than anyone
in living memory. In Habits of the Heart I and my
coauthors described four traditions that are powerful in America today.
We called our primary moral language “utilitarian individualism,” the
calculating concern for self-interest that is natural in our kind of
economy, and a language that all candidates, Republicans and Democrats,
must often use as they appeal to various interest groups to support
them. But we have three secondary moral languages that give a greater
richness and moral adequacy to our discourse (even as they are often
shunted aside by the dominance of the language of self-interest),
expressive individualism, biblical language, and the language of civic
republicanism. All candidates use the language of expressive
individualism when they try to show us their human side, tell their
individual stories and the stories of those who support them. But the
substantial alternatives to the language of utilitarian individualism
are biblical and civic republican. Biblical language, like all the
others, comes in several forms, but here I am referring to the language
of Martin Luther King Jr. and William Sloane Coffin—that is, a language
that expresses the dominant biblical concern for those most in need, a
language that reminds us of our solidarity with all human beings. When
Obama says “we are our brothers’ keepers; we are our sisters’ keepers,”
when he suggests, as he does in so many ways, that we all need one
another, all depend on one another, he is using that biblical language
at its most appropriate. And in his emphasis on public participation at
every level, in his refusal to take money from lobbyists and political
action committees, he is reviving the spirit of civic republicanism, of
voters as citizens responsible for the common good, not political
consumers concerned only with themselves.
The probable Republican nominee, John McCain,
seems to be a better human being than his Republican rivals, more human
and more moral. But to the degree that he relies on the politics of
fear—apparently the Republicans’ only hope—and demonizes Islam in the
process, he would lead us to follow our worst instincts and continue a
policy that has the gravest consequences for the world and the place of
America in the world. That leaves the only real choice (I’m writing
this in late February) as that between Clinton and Obama. I am not sure
Obama can deliver on what he promises—he will surely face fanatical and
powerful opposition to anything he tries to do. And I am not sure he
can resist the temptations of our political culture to compromise—not
to compromise for the sake of doing what is realistically possible, but
to compromise principles. And I believe Hillary Clinton is probably
better prepared to deal with the realities of the presidency from “day
one,” as she has said. But there is a grandeur and a hope in Obama that
makes me want to give him the chance to lead our country.
Should Clinton be the nominee, I would
strongly support her. I hope that Obama’s example would encourage her
best instincts, as Edwards’s example has encouraged both Obama and
Clinton. But if Obama is not the nominee, and if he is never elected
president, I am sure that, God willing, he will long be a political
presence that will forever be calling us to heed “the better angels of
our nature.”
I am not as confident as many that the
Democratic nominee will win in November. Americans of late have been
very vulnerable to the politics of fear, as have many nations in the
past. I am reasonably sure that the Democrats will have a significant
majority in both houses of Congress, that if McCain wins it will be a
personal victory with very short coattails. That means a great deal of
conflict and gridlock in a period when we can ill afford it. If we
have, as expected, a Democratic president next year, the road will
still not be easy. Both Democratic candidates have promised what
amounts to universal health care, but opposition to that is enormously
well financed and it will be a struggle to keep even a significant
Democratic majority sufficiently together to pass it. Every significant
issue, domestic and foreign, will be contested, will require both
presidential leadership of a high quality and public pressure on the
Congress to do the right thing. We may be confident that, whoever is
elected, things cannot be as bad as under George W. Bush. Yet that is a
very low standard. I cannot say I am very optimistic that the standard
will be significantly lifted. Still, hope is a theological virtue; it
is something required of us. Whatever we may fear, we must keep hope
alive.
[UPDATE: As I hope those who read Doug Kmiec's piece can readily see, I didn't mean "responds to Robby George" literally. Indeed, Doug wrote his piece before he could possibly have seen the comments Robby sent me for posting. It would be very interesting to read a (literal) response by Doug to Robby, on the precise issues Robby addresses in his post. With Robby's help, I will encourage Doug to provide such a response.]
Robby George criticized Barack Obama in the message I posted here this morning. For a rather different view of Obama, by Doug Kmiec, famously Catholic law professor at Pepperdine, former dean of the Catholic University School of Law, and, not least, a Republican who served under Presidents Reagan and George H. W. Bush, keep reading. (Thanks to MOJ reader Ronald Volkmer, at Creighton, for sending me this.)
A Prayer From Barack
Obama Douglas W. Kmiec 03-03-2008
In the Feb. 26 Democratic debate, Tim
Russert asked Sen. Barack Obama what he thought of minister Louis Farrakhan’s
endorsement of him. Obama said he denounced it, which was good enough for
everybody but Sen. Hillary Clinton, who demanded that Obama also reject it.
Obama, with bemused annoyance, complied, but I thought, uh-oh, here we go, will
Republicans dissatisfied with their default nominee be the next potential votes
denounced and rejected? Russert didn’t ask, and Obama said he welcomed support
from a wide range of people including Republicans and independents. What a
relief!
In an essay for Slate magazine (“Reaganites for Obama?” Feb.
13), I suggested that two groups I know well — Reaganites and Catholics — might
be happier with Barack Obama than Sen. John McCain. The essay stirred up a
ruckus among my former Reagan administration colleagues (who thought I was
abusing some substance, like a few other Malibuites who succumbed to their “last
temptations” in recent years) and in church communities across the country
(which just said they would pray for me).
My reasons for writing so
provocatively were a combination of skepticism toward McCain (full disclosure: I
was a legal adviser to Mitt Romney, so skepticism came naturally) and a
fascination with Obama. Unless you gave up TV for the duration of the writers’
strike or something shorter, such as Lent, the Ronald Reagan comparison is
obvious. Obama’s eloquence and inspiration is inescapable.
The Catholic
doubts about McCain are more subtle, but my point — which actually has
implications for many faiths — is that signing on to the McCain campaign by
default slights a large body of religious teaching in opposition to Iraq and
strongly in favor of immigrants, the environment, and the family wage. So with
the innocence of someone who teaches Sunday school in a laid-back beach
community, I suggested that believers had a moral obligation to inquire further.
SOMETHING DEEPER
The suggestion gathered some support, but also abundant
amounts of personal vilification insinuating that I had sold my soul for a
prospective Supreme Court appointment in an Obama administration (which has the
entire People for the American Way in stitches) or damning me for eternity.
Ordinarily this would not prompt me to write more, but now that the epithets
have temporarily subsided (Muqtada al-Sadr’s cease-fire or perhaps the surge is
working), herewith a few additional thoughts in mitigation (or aggravation as
the case may be).
Well before Obama entered the national consciousness
by means of presidential primary, he addressed what he called “the mutual
suspicion that sometimes exists between religious America and secular America.”
In a speech entitled “Call to Renewal,” given in Washington in the summer of
2006 (at a poverty conference of the same name), Obama noted that during his
Senate campaign, he was challenged on his abortion views. Obama gave the
standard liberal response: It is impermissible to impose his religious views
upon another. He was running for “U.S. senator of Illinois and not the minister
of Illinois,” he quipped. Had Obama left it at that, he could easily be written
off by conservatives as just another secular, anti-religious, and, likely,
big-government liberal.
But the insufficiency of that answer nagged at
him. He realized — and this epiphany explains his successful campaign, I believe
— that the greatest division in America today is “not between men and women, or
those who reside in so-called red states and those who reside in blue, but
between those who attend church regularly and those who don’t.” He also
recognized that some conservative leaders “exploit this gap” by reminding
evangelical Christians how much Democrats disrespect their values and dislike
their church.
Truth hurts, but, of course, pointing fingers at Pat
Robertson or Karl Rove would still not have merited positive conservative or
Catholic notice — if Obama hadn’t kept talking. He didn’t just criticize those
on the right who used religion as a wedge issue; he directed a healthy amount of
criticism at his own party. Democrats, he said, avoid engaging the substance of
religious values by falsely claiming the Constitution bars the subject. Even
worse, some far-left liberals paint religious Americans as “fanatical,” rather
than as people of faith. Now that got my attention.
Here was a Democrat
who got it. Indeed, why say “Democrat”? Here was a public figure who actually
understood that, for millions of Americans, faith “speaks to a hunger that’s
deeper than... any particular issue or cause” — his words, lest Hillary and the
copyright police get on my case.
Obama reflected on how neither of his
parents were actively religious, and yet he found himself drawn to the church.
He could engage in community organizing for the poor, but without faith he would
always remain “apart and alone.” Faith did not mean no doubt, said Obama, but it
did mean hearing God’s spirit beckoning. After joining an African-American
church, he found himself employing the language of faith—well, OK, maybe he did
hear it first from Deval Patrick—and ever since his work has been electrified.
Xeroxed or not, those references to Abraham Lincoln’s Second Inaugural Address
and “the judgments of the Lord” or Dr. Martin Luther King Jr.’s embrace of “all
of God’s children” inspire and call upon our better selves.
SINGING TO THE CHOIR
Obama is frequently chastised these days by Mrs. C for
being all words and no substance (or something about hats and cattle that is
funny only in Texas), but that criticism is falling flat. Much earlier, Obama
himself noted that there is nothing more transparent than “inauthentic
expressions of faith.” Showing that occasional dry wit, he likened it to
politicians who “come and clap — off rhythm — to the choir.” So while the number
of recent primaries won by Clinton can be counted on one hand clapping, Obama
receives thunderous applause whenever he challenges secularism and those who
would urge that religion be banished from the public square. Calling as his
faith witnesses Lincoln, King, Frederick Douglass, and Dorothy Day, Obama tells
his audiences that it is an “absurdity” to insist that morality be kept separate
from public policy.
Having urged liberals to see how much of American
life is grounded in the Judeo-Christian tradition, Obama does have a request for
conservatives — namely, try to fully understand the liberal perspective on the
separation of church and state. Not the infamous “wall of separation” that
bizarrely mandates affirmative secularity disguised as neutrality, but the
perspective, according to Obama, that separation more readily protects church
from state than the opposite.
This sentiment, unlike the exclusionary
view invented by the late Justice Hugo Black in the late 1940s, is as old and
wise as Alexis de Tocqueville, who cautioned churches against aligning too
closely with the state for fear of sacrificing “the future for the present.” “By
gaining a power to which it has no claim,” Tocqueville observed, “[the church]
risks its legitimate authority.”
There is nothing in that assessment of
church-state separation objectionable to conservatives. Indeed, Obama’s thoughts
could have been seamlessly added to Romney’s “Faith in America” speech without
changing its meaning.
LIFE AND
DIGNITY
Nevertheless, part of Obama’s
message remains difficult for conservatives, especially Catholics. Committed to
the protection of human life in the womb, Catholics are urged (some of my
critics say “mandated,” but with respect, they are mistaken) to vote only for
candidates who oppose abortion. In truth — and here let me quote the bishops
directly so they can share in the mail — “a Catholic cannot vote for a candidate
who takes a position in favor of an intrinsic evil, such as abortion or racism,
if the voter’s intent is to support that position.” But voters should not use a
candidate’s opposition to abortion “to justify indifference or inattentiveness
to other important moral issues involving human life and dignity” — such as,
say, the invasion of a foreign nation leading to the sacrifice of the lives of
our own troops and of thousands of others.
A digression? I don’t think
so, but here’s the question: Does Obama’s thoughtful appreciation of faith mean
that he would work toward the protection of life in all contexts even if that
protection cannot be achieved in a single step?
I’m inclined to think
so, though it’s at this juncture that large numbers of my Republican friends
will say, “Kmiec, get real, just think who Obama will appoint to the Supreme
Court?” That suggests at least two things: First, they really weren’t at all
serious about my prospects for the top bench, and second, isn’t it time for both
sides to stop treating the Court like a political sinecure?
Chief
Justice John Roberts Jr. has done an able job of lowering the Court’s profile.
Even when the Roberts Court takes on big issues—such as “partial-birth” abortion
and racial tie-breakers—it has knack of writing small, preferring the “as
applied” to the “facial” challenge. With that condo in Florida and his active
tennis game, there’s no reason to think Justice John Paul Stevens won’t reach a
Biblical age, and hey, if he hangs on long enough, maybe both sides will have
decided so many jurisdictional, tax, and sentencing guideline cases that they
won’t remember the Court’s previous, more activist history.
NOT EASY FOR ANYBODY
OK, that was a digression. Returning to religious
conservatives, like me, who have faith-related, ethical concerns, Obama argues
that there must be, in this life, a distinction between the uncompromising
commitments that religion calls us to make and the public policy that we can
realistically expect. This is a dose of political pragmatism, and reasonable on
virtually any issue not involving a grave moral evil. It’s not an easy answer.
But frankly, that’s a problem not just for Obama, but for all of us. As he
writes, “I may be opposed to abortion for religious reasons, but if I seek to
pass a law banning the practice, I cannot simply point to the teachings of my
church or evoke God’s will. I have to explain why abortion violates some
principle that is accessible to people of all faiths, including those with no
faith at all.”
To his credit, Obama neither offers up a glib,
unsatisfying solution nor reverts to the standard liberal line that objective
moral values have no place in the public discussion. Our problems are not mere
technical dilemmas “in search of the perfect 10-point plan. They are rooted in
both societal indifference and individual callousness — in the imperfections of
man.”
If liberals and conservatives would stop shouting at each other
(and most especially at me), more people might see abortion as a product of
societal indifference and individual callousness: the former exemplified by
economic conditions ranging from inadequate wages to evictions traceable to the
subprime fraud; the latter typified by a self-centeredness that sees children as
competitors or enemies to personal fulfillment. A person who understands the
significance of faith as well as Obama does is likely to have a better chance of
understanding and addressing both causes. Why? Because when the seemingly
insoluble intrudes upon life as it inevitably does, the religious person has the
humility to pray. Obama concluded his own religious reflections a few years back
with what he described as “a prayer I still say for America today.” The prayer?
That despite our profound disagreements, “we can live with one another in a way
that reconciles the beliefs of each with the good of all.”
This is as
much a Catholic prayer as a Jewish or Protestant or Mormon or Muslim one, which
is why barring the completely unexpected, Barack Obama will be the next
president of the United States — with or without my vote.
Like you, I am disappointed that John McCain
has accepted the endorsement of John Hagee. Mr. Hagee promotes some truly
appalling libels against the Catholic Church, including those advanced first by
European leftists, such as Rolf Hochuth, and then by Catholic liberals, such as
John Cornwell, against Pope Pius XII and other Catholic leaders whom they accuse
of failing to aid Jews and other victims of Nazism and even of sympathizing with
Hitler. Just as the roots of eugenics were in the progressivism of the Weimar
period before the rise of the Nazis, the roots of Hageeism in its attempt to
link Catholicism and Nazism are in the leftism of the 1960s. Hagee did not
invent the black legends he promotes, just as the Nazis did not invent the
horrific doctrine of lebens unswerten leben.
I wish McCain would distance himself from
Hagee, just as I wish Barack Obama would distance himself from Jeremiah Wright.
But my vote in this election will not be determined by whose endorsements these
candidates accept or reject. My vote will be determined on the basis of my
judgment about what respect for basic human rights requires of me as a voter. I
plan to vote for McCain because he fundamentally accepts, and Obama
fundamentally rejects, the principle that each and every member of the human
family, irrespective not only of race, sex, and ethnicity, but also irrespective
of age, size, stage of development or condition of dependency, possesses
inherent dignity and, as such, is entitled to the protection of the laws. The
killing of human beings in the embryonic and fetal stages is the great human
rights issue of our domestic politics. It is an issue on which clear lines have
been drawn between the candidates. McCain's record is not perfect, but it is
very good. Obama's record is appalling.
I have heard some people argue that, despite
their stated differences, there would be little actual difference between an
Obama presidency and a McCain presidency on sanctity of life issues. Some have
even suggested that Obama is the better choice because his policies would reduce
the "need" for abortions. I think this view is deeply misguided for a many
reasons. I would be happy to go into detail as to these reasons if you like.
For now, I will simply point out that Obama has vowed to appoint Supreme Court
justices who will rule that the killing of the unborn is a constitutional
right---a fundmental principle around which we as a people constitute ourselves
as Americans. Moreover, he would revoke the "Mexico City Policy," thus
implicating all of us in paying for the killing of unborn children by abortion
in foreign nations. And he would seek public funding for abortions at home. He
would empower abortion providers such as Planned Parenthood in countless ways.
That is why they support him and oppose McCain.
But even if we were to assume what I believe
is patently untrue, namely, that Obama's policies would reduce the number of
abortions, still the certain death toll under Obama would make it morally
impossible for me to support him. Let me say why. Obama and McCain are on
opposite sides of what will be the great pro-life struggle of the next decade,
namely, the creation by cloning of human embryos to be destroyed in biomedical
research. McCain is a co-sponsor of the bill introduced in the Senate by
Republican Sam Brownback and Democrat Mary Landrieu to forbid all human cloning,
including the creation of human embryos for research. Obama supports
legislation that would authorize and fund the creation of human beings for
research in which they are killed in the embryonic stage. Even on the most
wildly optimistic view, any reduction of abortions under an Obama administration
would be hugely offset by the creation and killing of embryonic human beings for
research.
To make matters worse, the legislation Obama
supports would, in effect, require the destruction of every embryonic
human created by cloning. It would make it a crime to save the embryo, by
permitting him or her to be rescued by a woman who was prepared to have the
embryo implanted in her womb. The bill Obama supports is quite literally a
"clone and kill" bill. It pretends to ban "cloning," but it does nothing at all
to ban cloning. What it bans, and would punish, is the implantation of any
embryo who has the misfortune of coming into existence by cloning. It imposes
on that tiny developing member of the human family a sentence of death.
Liberal bioethics writer Will Saletan, who
supports embryo-destructive research, has stated with admirable candor and
clarity what is being proposed here: “the mass production, exploitation, and
destruction of human embryos.” The legislation Obama supports would result in a
huge industry in human embryo-production and human embryo-killing. The death
toll would quickly become enormous. Assuming that the Democrats retain and
strengthen their control of Congress, that legislation will be passed
sometime early in the next presidential administration. If McCain is elected
president, he will veto it; if Obama is elected, he will sign it into
law.
There are many injustices in our country.
None can compare, however, with abortion and embryo-destructive research when it
comes to the gravity and sheer scale of the injustice. We are talking about
life and death here in huge numbers. Indeed, the scope of the killing itself
tends to numb our sense of the horror of it. We think about it as little as we
can, for understandable reasons. It is hard to get through the day if we focus
our minds squarely on the thousands of deliberate and legally authorized
killings that go on every day in our nation. (The same was true for opponents
of slavery in the 19th century.) But, as I see it, there is no avoiding our
moral obligation to make this profound violation of human rights central to our
deliberations as voters. If we were the victims, we would expect others to make
the protection of our lives central to their decision about voting. So, as I
see it, the implications of the Golden Rule are clear. The question for each of
us is whether we are willing to live by it.
I received an e-mail message from a third year law student today, and I thought that many MOJ readers would be interested in reading it. So, with the student's permission, I'm pasting the message below. I hope MOJ bloggers who are committed to voting for McCain in the general election--or who are presently inclined to vote for him--can post a response to the student's inquiry. Rick? Michael S.? Others?
I am a 3L, a
devout Catholic, and have been reading (and enjoying) MOJ for quite a
while now. I have a question regarding the recent turn of events with
John McCain. I don't suppose there is actually a correct answer to
this question, but what is a moderate, but right leaning, devout
Catholic to do? I consider myself politically moderate, but find
myself leaning more republican because of health care, abortion, and a
couple other issues that I find most important. But I find it hard to
support a candidate who aligns himself with people such as Hagee who
speaks so disparagingly of the Catholic church.
Is there any sort of guidance from the CCC? Is it "better" to vote
for someone who advocates for obviously catholic policies (i.e.
abortion, sanctity of marriage, etc...) and "disregard" his inferred
support of anti-catholic sentiments? Are we hypocritical to
continue to lend our support for McCain? Do we consider his
statements as just another cross we have to bear? Or, do we vote for
someone who disconnects themselves from all people who make intolerant
statements despite the fact that many policies are against many of the
basic tenants of the catholic faith?
As I mentioned before, these questions are most likely ones without
definitive answers. I also am aware that November is still 9 months
away and a lot can happen in that time. But, since we're all in the
legal field and like to discuss hypotheticals, even those that may not
occur, I thought I'd throw this out there anyway.
Thank you for your time.
Last Wednesday, Senator John McCain said he was "honored" to receive the
endorsement of Evangelical pastor John Hagee. Pastor Hagee is a controversial
and influential figure who has issued sentiments offensive to many Catholics. He
has argued that the Catholic Church inspired and supported the Holocaust, and
even called it the "Great Whore."
In 2000, John McCain made headlines when he publicly spoke out against faith
leaders he described as "agents of intolerance." Now he is openly touting Pastor
Hagee's divisive endorsement - a move that calls into serious question his
commitment to principle.
Catholics United wrote John McCain last week and asked that he publicly
distance himself from Hagee's anti-Catholic comments and reject this
endorsement. After receiving numerous inquiries from the media, John McCain has
refused to condemn Hagee's anti-Catholic comments. He remains "proud" of this
endorsement.
As Catholic League president Bill Donohue pointed out, Sen. Barack Obama
rejected an endorsement from Nation of Islam leader Louis Farrakhan, an
endorsement the senator did not solicit in any way. But McCain not only asked
for Hagee's endorsement, he was proud to win it.Tell Senator McCain to do the right thing and demonstrate
unequivocally that anti-Catholicism and intolerance have no place in American
politics.
