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.

Sunday, February 10, 2008

Bill Stuntz on Abortion (and other things)

In this article in The Weekly Standard, Bill Stuntz argues as he has elsewhere that the political battle to overturn Roe has been fought and won by the pro-choice side.  Any comments?

Wednesday, February 6, 2008

A Lenten Fast

From the Office of the Readings for Ash Wednesday, taken from Isaiah 58

The Lord says -

“Is not this the fast that I choose:

to loose the bonds of injustice,

to undo the thongs of the yoke,

to let the oppressed go free,

and to break every yoke?

Is it not to share your bread with the hungry,

and bring the homeless poor into your house;

when you see the naked, to cover them,

and not to hide yourself from your own kin?

Then your light shall break forth like the dawn,

and your healing shall spring up quickly;

your vindicator shall go before you,

the glory of the LORD shall be your rear guard.

Then you shall call, and the LORD will answer;

you shall cry for help, and he will say, Here I am.

If you remove the yoke from among you,

the pointing of the finger, the speaking of evil,

if you offer your food to the hungry

and satisfy the needs of the afflicted,

then your light shall rise in the darkness

and your gloom be like the noonday.

The LORD will guide you continually,

and satisfy your needs in parched places,

and make your bones strong;

and you shall be like a watered garden,

like a spring of water,

whose waters never fail.”

Thursday, January 31, 2008

On St. Augustine's Search for Truth

"Faith and Reason Are the Two Forces That Lead Us to Knowledge " VATICAN CITY, JAN. 30, 2008 (Zenit.org).-

Here is a translation of the address Benedict XVI delivered today at the general audience in Paul VI Hall. The reflection is the third in a series on St. Augustine, bishop of Hippo.

* * *

Dear friends, After the Week of Prayer for Christian Unity, we return today to the great figure of St. Augustine. In 1986, on the 1,600th anniversary of his conversion, my beloved predecessor John Paul II dedicated a long and detailed document to St. Augustine, the apostolic letter "Augustinium Hipponensem." The Pope himself chose to describe this text as "thanksgiving to God for the gift he bestowed on the Church and on all humanity with that wonderful conversion" (AAS, 74, 1982, p. 802). I would like to return to the subject of his conversion in a future audience. It is a fundamental subject, not only for St. Augustine's own personal life but for ours too. In last Sunday's Gospel, the Lord himself summarized his preaching with the words "be converted." In following the path of St. Augustine we can consider what this conversion revolves around: It is definitive, decisive, but the fundamental decision must be developed and must be accomplished throughout our lives.

Today instead, the catechesis is dedicated to the subjects of faith and reason, which are the defining themes of St. Augustine's biography. As a child he learned the Catholic faith from his mother Monica. As an adolescent he abandoned the faith because he could not see how it could be reasoned out and did not want a religion that was not also for him an expression of reason -- that is to say, truth.

His thirst for truth was radical and led him away from the Catholic faith. His radicality was such that he was not satisfied with philosophies that did not reach truth itself, and that did not reach God -- not a God as a last cosmological hypothesis, but the true God, God who gives life and joins our very lives.

The intellectual and spiritual itinerary of St. Augustine is also a valid model for today in the relationship between faith and reason, a topic not only for faithful individuals, but for every person who seeks the truth, a central theme for the equilibrium and destiny of every human being. These two dimensions, faith and reason, should not be separated nor opposed, but rather go forward together. As Augustine himself wrote after his conversion, faith and reason are "the two forces that lead us to knowledge" ("Contra Academicos," III, 20, 43).

To this end the two famous Augustinian formulas ("Sermons," 43, 9) express this coherent synthesis between faith and reason: "Crede ut intelligas" (I believe in order to understand) -- faith opens the way to step through the door of truth -- but also, and inseparably, "intellige ut credas" (I understand in order to believe), in order to find God and believe, you must scrutinize truth.

For the rest, click here.

Tuesday, January 29, 2008

The Eve of St. Agnes—Green Bay, 2008

Avery Cardinal Dulles is having a little fun over at the First Things Blog.  Click here for Cardinal Dulles' parody of Keats poetry in a poem entitled "The Eve of St. Agnes - Green Bay, 2008."

Eugenics

A Return to Barbarity

Quest for Perfection Leads to Selective Killing of Unborn (for complete article, click here)

By Father John Flynn, LC

ROME, JAN. 28, 2008 (Zenit.org).- The quest for a perfect child is leading to the increasing use of techniques to discover possible health problems in the unborn. Normally this is not done with a view to healing, and results in the deaths of embryos considered imperfect.

It Italy court decisions are in effect undoing a legal prohibition against the use of such screening programs, known as preimplantation genetic diagnosis (PGD). A 2004 national law vetoes screening embryos before they are implanted in the mothers' womb.

Nevertheless, a court in the Lazio region of Italy last week declared this restriction as being "illegitimate," reported the Italian daily newspaper, Corriere della Sera on Jan. 24. Already in past months local tribunals in Florence and in the Sardinian city of Cagliari had come to similar decisions.

In the Cagliari decision the judge upheld a mother's request to screen her in-vitro embryos for a hereditary blood disorder, reported the Italian news agency ANSA on Sept. 25. At the time both the Italian bishops' conference and Catholic politicians were strongly critical of the ruling.

In fact, in 2006 the nation's top tribunal, the Constitutional Court, heard a challenge to the 2004 law regarding its banning of PGD, and the court upheld the statute. "I thought judges were supposed to apply the law and that their interpretations were based on what the Constitutional Court decides," said Monsignor Giuseppe Betori, secretary of the bishops' conference, in comments reported by ANSA following the Cagliari decision.

The Vatican also weighed in after the subsequent Florence decision. Eliminating an embryo is equivalent to homicide, declared Cardinal Javier Lozano Barragán, president of the Pontifical Council for Health Care Ministry, in comments reported by the Repubblica newspaper Dec. 24.

England go-ahead

The trend to increasing use of PGD is very evident in England. A couple recently received approval to test their embryos for a genetic defect that leads to high cholesterol levels, reported the Times newspaper on Dec. 15.

The approval, by the Human Fertilization and Embryology Authority, was given in relation to a genetic trait that is a relatively rare condition and which can lead to the death of children at an early age. The Times noted, however, that the couple have a milder form of this genetic problem and that it could well result that the embryos would have a good chance of becoming children with reasonably healthy lives.

Shortly after this authorization it was argued that deaf parents should be allowed to screen their embryos so as to be able to pick a deaf child, reported the Sunday Times on Dec. 23. According to Jackie Ballard, chief executive of the Royal Institute for Deaf and Hard of Hearing People, a small minority of couples would prefer to have a deaf child so as "to fit in better with the family lifestyle."
Some practitioners of embryo screening were not in agreement. "This would be an abuse of medical technology," stated Gedis Grudzinskas, medical director of the Bridge Center, a clinic in London that screens embryos, according to the Sunday Times.

Earlier in the year approval was granted to screen embryos for a gene that brings with it an increased risk of breast cancer, reported the Times on July 21. The article commented that not all those with the gene will necessarily develop breast cancer, meaning that the screening will lead to destroying some embryos that would have been healthy.

Enhancing humanity

Along with increased use of PGD to eliminate "defective" embryos arguments are also being made in favor of using such techniques to improving the human race. We should use genetic engineering and reproductive technology to produce "enhanced" people, argued John Harris in his 2007 book, "Enhancing Evolution: The Ethical Case for Making People Better" (Princeton University Press).

Harris is a professor of bioethics at the University of Manchester law school and a member of Britain's Human Genetics Commission.

The author does not settle for half measures. If we wish to make the world a better place we need to change humanity, he argued, even to the point where we or our descendants "will cease to be human in the sense in which we now understand the idea," says Harris in the book's introduction.

Harris adopts a utilitarian approach in which he maintains that such a course of action is not only desirable, but is also morally legitimate, as it has for its aim making our lives better.

The pragmatic orientation of his arguments leads Harris to deny embryos, and even newborns, the status of human individuals. Persons are properly called individuals, he advocated in one of the book's chapters, when they are "capable of valuing their own existence."

Another recent book in favor of genetically modifying future generations is: "Babies by Design: The Ethics of Genetic Choice, (Yale University Press) by Ronald M. Green. The author, director of the Ethics Institute at Dartmouth College, is less extreme than Harris, but still declares himself in favor of interventions in our own and our children's genetic makeup.

Green did acknowledge that there are some grounds for concern over where such genetic modification may lead. While distinguishing his position from the more extreme attitude of seeing human beings as perfectly malleable he did, however, conclude that we should accept changing our genetic structures.

Perfection temptation

The pressure in favor of eugenics has not gone unanswered. Last October Nobel Prize winner James Watson declared that blacks are generally inferior in intelligence to whites. In an Oct. 24 article commenting on the issue, Washington Post columnist Michael Gerson wrote about the eugenics temptation.

About 90% of fetuses found to have Down syndrome are aborted in America, he noted. Such practices give absolute power to one generation of defining what is normal and beautiful, and this inevitably leads to discrimination, he adverted. We should choose human equality over the pursuit of human perfection, he recommended.

Eugenics has long been condemned by the Church. In its 1987 Instruction on Respect for Human Life (Donum Vitae) the Congregation for the Doctrine of the Faith dealt with this issue, along with other questions related to artificial methods of reproduction.

One of the questions dealt with in the document, signed by the then prefect of the congregation, Cardinal Joseph Ratzinger, dealt with the question of the morality of PGD. If the prenatal diagnosis respects the life and integrity of the embryo, and is directed toward its safeguarding or healing, then it is licit, the instruction stated.

Right to life

"But this diagnosis is gravely opposed to the moral law when it is done with the thought of possibly inducing an abortion depending upon the results," the Congregation for the Doctrine of the Faith warned. A diagnosis that reveals some illness "must not be the equivalent of a death sentence," the instruction added.

Eliminating embryos who suffer from malformations or hereditary illness, is a violation of the unborn child's right to life and as an abuse of the rights and duties of the spouses, the document concluded.

This teaching was confirmed in the Catechism of the Catholic Church, No. 2268. In an explanation dealing with the Fifth Commandment that forbids direct and intentional killing, the Catechism specifically included eugenics. "Concern for eugenics or public health cannot justify any murder, even if commanded by public authority," the number states. Warnings increasingly being ignored as a post-Christian society, under the pretext of progress, returns to barbaric practices.

Saturday, January 26, 2008

I don't normally blog about politics but ...

... this was just too good to pass up.  Check out this article in the Onion.

HT:  Anthony Scaperlanda

Friday, January 25, 2008

Judicial Independence?

It has been a busy and exciting week at the OU College of Law on the occasion of our alum Robert Henry’s investiture as Chief Judge of the 10th Circuit.  The 10th Circuit has been sitting at OU all week.  On Tuesday night four of the judges spent a couple of hours talking with students at a Federalist Society event.  Thursday morning Justice Sandra Day O’Connor sat with one panel, and Friday morning our three courtrooms were occupied by separate panels of judges hearing arguments. Thursday afternoon Justice Stephen Breyer gave the annual Henry Lecture (endowed by Robert Henry, his cousin Governor Brad Henry, and the Henry family) and Thursday night after dinner OU President David Boren engaged in a fireside chat (sans the fire) with Justices O’Connor and Breyer. 

Judicial independence was stressed by both justices – in the lecture and during the evening discussion. 

In the first part of his provocative lecture, Breyer argued that it was the obligation of the people (and their political leaders) to accept the Court’s constitutional rulings even when they disagreed with them.  Here he contrasted President Jackson and President Eisenhower, suggesting that we have made “progress” toward this goal of being a people respecting the rule of law defined partly as the law laid down by the Court. 

In the second part of his lecture, Breyer discussed the obligation of the Court and used Dred Scott as an example of the Court getting it “wrong, wrong, wrong.”  He did not, however, circle back to Part One of his talk to discuss who had the better response to Dred Scott, Lincoln or Douglas.  But to be consistent with the conclusions drawn in Part One of the lecture, he would have to side with Douglas unless another rule is operative when the Court doesn’t just get it “wrong” but gets it “wrong, wrong, wrong.”

When judges are acting as judges, I strongly back judicial independence.  They need that insulation from outside pressure when making decisions, especially unpopular decisions.  But, when the Court gets a constitutional issue not just “wrong” but “wrong, wrong, wrong,” should we, with Douglas, hold ourselves bound by that decision giving it the title Law, or should we, with Lincoln, conclude that the Court’s holding is not binding in the political sphere?  What do you think?

Hamilton

(in the Federalist Papers) got it right, I think.  He argued for judicial review, even in constitutional matters, and he saw the need for an independent judiciary.  Breyer used these two points from

Hamilton

as a foundation for his argument in Part One of his talk.  But, as I read

Hamilton

, he goes farther, suggesting that if and when the Court oversteps its bounds and usurps legislative authority, Congress won’t stand for it.  In other words, Hamilton saw a dynamic interplay between the Congress and the Court, where the Court would provide a check on the Congress but Congress would also provide a check on the Court, at least where the Court gets it “wrong, wrong, wrong” to use Breyer’s words.  Breyer did not mention this part of

Hamilton

’s argument.

I wonder whether the current quest for judicial independence is a quest to insulate the judiciary from an active Lincoln-type (more than mere words) criticism of the Court’s work.  To reject complete judicial independence and follow Lincoln (and Hamilton) raises many questions.  When should we take action against the Court?  Obviously (at least to me), it can’t be when we merely disagree with the Court’s conclusion.  Is it anytime the Court writes an opinion that would merit no more than a “C” if written by one of our students? (I can think of several!)  Or, is more required?  Is it only on those occasions when the Court gets it so wrong that in John Hart Ely’s words (referring to Roe) it is not just bad constitutional law but that it is so bad that it is not law at all?  (Or, to use Breyer’s words, when the Court gets it “wrong, wrong, wrong.”)  Or, is still more required?  Is it only when the Court gets it “wrong, wrong, wrong” and the case is one of those epoch cases like Dred Scott and Roe?  And, then, what action should be taken?  Do we ignore, as a political matter, the Court’s ruling as

Lincoln

said he would?  Do we attempt to pack the Court with different minded judges as

Lincoln

said he would?  Do we attempt to strip the Court of jurisdiction?  Do we attempt to impeach the offending justices?  Do we mess with the Court’s budget?  On this last score, it seems to me that Congress could signal to the Court that the Court is overstepping its bounds by taking away the Court’s computer and law clerk privileges as punishment for misbehavior.  If those budgets were cut, the Court would, as

Hamilton

suggested, reflect and repent.

I can understand why judges would try to convince the public that they are entitled to an almost absolute independence.  Looking at human nature, the framers assumed that each political power center would attempt to protect and grow its turf, therefore it supplied check and balances.  What baffles me is the degree to which Congress has abrogated its responsibility to provide a check on the Court in some fashion at least in those instances where the Court gets it “wrong, wrong, wrong” in an epoch case.

As Justice Breyer continues to explore the web of interlocking relationships in our polity, I hope he will address whether the people (and their representatives) have a right and maybe even a duty to push back against the Court at least when the Court makes a “wrong, wrong, wrong” decision of epoch proportions.  After his lecture, Justice Breyer said that he will wrestle with

Lincoln

’s response to Dred Scott. Will he champion Lincoln or Douglas?  I look forward to hearing Breyer’s thoughts.

A Mother's Sacrifice

Lorraine Allard died Jan. 18, 2008.  After discovering cancer in her liver, Lorraine's doctors encouraged her to abort her unborn child so that she could begin treatment.  She refused saying that "If I'm going to die, my baby is going to live."  Click here for the article.

Thursday, January 24, 2008

A Jesuit Martyr

"Alfred Delp, S.J., was hanged for high treason in Berlin-Plotzensee at the age of 37" writes Andreas Batlogg in the current issue of America.  He could have avoided death - which came on Feb. 2, 1945 near the end of WWII - if he had renounced his Jesuit vows.  As the execution drew near he wrote:  "The real reason for my conviction is that I am and have remained a Jesuit. ... The atmoshere is so full of hate and hostility.  The basic thesis was:  a Jesuit is a priori an enemy and opponent of the Reich."

On Christmas Eve of 1944, a little over a month before his execution, he scratched the following words on his prison cell wall:  "Let us trust life, since we do not have to live it alone, for God lives it with us."

Let us pray for all who despair, thinking that they are alone in this life.  Despite his life at the hands of the Nazi's, Delp longed to live.  Three weeks before his death, he wrote a friend:  "It has become an odd sort of life I am leading.  It is so easy to get used to existence again that one has to keep reminding oneself that death is round the corner.  Condemned to death.  The thought refuses to penetrate; it almost needs force to drive it home.  The thing that makes this kind of death so singular is that one feels so vibrantly alive with the will to live unbroken and every nerve tingling with life."

As the world mourns the death of a highly successful but seemingly lonely movie star, as our 24 hour news cycle continually covers the destructive patterns in the lives of celebrities who seemingly have it all, and as we witness the despair, loneliness, and destruction in our own lives or the lives of those around us, may we be given the peace and the grace to say:  "Let us trust life, since we do not have to live it alone, for God lives it with us."

Wednesday, January 23, 2008

Interesting Year at the Movies

This year we had three (IMHO opinion) good movies in which a main character faces an unplanned and unwed pregnancy: Knocked Up (I liked it despite its vulgarity), Bella, and Juno.  I was pleasantly surprised to see Juno nominated for Best Picture, Best Director, and Best Actress.   

Update:  My son, Christopher, reminded me that Juno has also been nominated for Best Original Screenplay.