As the political storm over the Bush Administration's domestic surveillance program rages on, I've been struck at the apparent absence of a distinctly Christian perspective from the debate. While many Christians' support of President Bush may make their silence politically expedient in the short term, it is not consistent, in my view, with the Christian view of law and government.
Among the foundational tenets of Christianity is a belief in original sin. In the Christian worldview, sin is an inescapable component of the human condition, and government – as an institution created and operated by humans – must account for the reality of sin. This belief was not foreign to the Constitution’s framers, as evidenced by their genius in establishing a government of separated powers and checks and balances.James Madison made the connection between sinful man and the constitutional dispersal of power explicit in Federalist No. 51:
[T]he great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. [A]mbition must be made to counteract ambition. . . . It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary.
As a believing Christian, President Bush presumably would not dispute the need to account for the fallen nature of office-holders in our government structure.But he too frequently seems to be paying scant homage to that need for accountability in carrying out the war on terror.Whether the accusation pertains to the torture of suspected terrorists, the factual premises of the Iraq invasion, or the prospect of the government listening in on Americans’ phone calls, his response often seems to boil down to derivations of two themes: “Trust me” or “I need this power to keep us safe.”
For example, in admitting more than four years of surveillance without adhering to the statutory requirement of court authorization, President Bush offered this conclusory assurance to the nation: “one, I've got the authority to do this; two, it is a necessary part of my job to protect you; and, three, we're guarding your civil liberties.”From a Christian perspective, the preservation of civil liberties must be rooted in structural safeguards, not on personal assurances.The problem does not disappear with the President’s good-faith intentions; it remains pressing as long as the courts have been removed as an effective check on executive power. Especially in a war that has no readily conceivable end, invoking the prospect of American casualties to justify the consolidation of power in one person is dangerous business.
Christian skepticism toward even the well-intentioned presidential power grab must transcend political affiliation and personality.It’s not a function of the trust we place in the President; it’s a function of our beliefs about human nature.
In commemorating MoJ's second anniversary, Mark asked how we're doing regarding our objective of developing a Catholic legal theory and where we need to go next. That reminded me of a recent email I received from a law prof friend of mine who regularly reads MoJ even though he is not at all religious. He wondered why, since we're rooted in a Christian worldview, we don't talk about social justice more. I believe that much of our conversation on MoJ is driven by social justice broadly conceived, but as for specifically poverty-centered issues, my friend is probably right that we could do more. On that theme, here is Bono's speech to the National Prayer Breakfast, which just happened to occur on our second anniversary. (And no, I do not believe that Catholic legal theorists need to resort to rock stars for a coherent message on poverty, but the speech is worth reading nonetheless.)
The push for the legal protection of conscience is exploding across the country in a variety of health care contexts, as documented by The Washington Post earlier this week. It's not a positive trend, in my view. My opposition to a legally enshrined right of conscience for pharmacists, for example, is grounded in significant part on the fact that such rights effectively render pharmacies morally fungible, further eroding the intermediate ground between the individual and the state.
The conscience movement, of course, is no match for the reproductive-rights lobby when it comes to invoking the trump of state power on non-conforming intermediate bodies. The latest example is today's lawsuit against Wal-Mart in which NARAL and Planned Parenthood argue that, by not stocking emergency contraception in its pharmacies, the chain violates a Massachusetts state policy requiring pharmacies to carry all "commonly prescribed medicines."
If you find yourself in Nashville tomorrow night with time to spare, stop by Vanderbilt Law School where I'll be participating in a panel discussion addressing women's access to birth control in light of the "conscience" movement among pharmacists. With medical and religious ethicists and a Planned Parenthood official alongside, I'm anticipating a spirited and wide-ranging discussion.
Perhaps some common ground in the culture war divide is discernible given that even The New York Timesexpresses concern with the impact that our sex-saturated media culture has on children and the general failure to invest any resources in studying that impact. The Times article goes so far as to assert that the rate of teenagers' sexual activity (notably not just teen pregnancy) is "staggering." One of the only surveys on the question of media impact found that:
[W]atching TV with sexual content artificially aged the children: those who watched more than average behaved sexually as though they were 9 to 17 months older and watched only average amounts. Twelve-year-olds who watched the most behaved sexually like 14- and 15-year-olds who watched the least.
Much (but certainly not all) of the blame lies with parents, given that two-thirds of children 8 to 18 have televisions in their bedrooms.
I agree with Rick's critique of the Ayres / Brown proposed remedy for "associational fraud." Imposing a state-approved disclosure form on the membership process presumes that associations are nothing greater than the sum of their individual parts -- that is, an association's value is realized only to the extent that its members have subjectively and verifiably consented to the group's mission and message. Seen in this light, required disclosure simply helps associations become more effective associations. It is true that much of an association's mediating function would be lost if there was no correlation between the association's identity and the member's conception of that identity, but much of the mediating function would also be lost if associations were constrained to express that identity in a way that fits on a state-approved form. The fact that an association's identity is defined, articulated, and pursued beyond the reach of the state is inseparable from the reasons we value associations in the first place.
Further, even for folks concerned with ensuring "correct" identities across the associational landscape, it's not clear that the Ayres / Brown remedy would deliver on its promise. The proposal presumes that members will be empowered to demand change once a group's illiberal beliefs are brought into the light of day. But one advantage of not having a formal process by which associations must declare their identities is that those identities maintain a higher degree of malleability than if every facet of an association's core beliefs must be put in writing and incorporated as part of every membership decision. Institutional change may actually prove more difficult when the unspoken and uncertain beliefs are made explicit and certain. E.g., I'd venture to say that the Dale litigation made the leaders of the Boy Scouts more wedded to their anti-gay policy than they would have been if the issue had never been pursued by New Jersey. Just as a scholar's open mind can be jeopardized out of loyalty to his past work, an extensive paper record might prove a formidable obstacle to an evolving associational identity.
I assume that Vatican officials have been hanging around too much with lawyers. What else can explain the Vatican's very public dispute over fees it wants to charge for the use of Pope Benedict XVI's written work? Given the Great Commission, shouldn't we be encouraging widespread piracy and unauthorized publication of papal encyclicals and other documents bringing the Good News to the masses? I understand wanting to limit scandalous mischaracterizations of the work, but why are we talking about money in this context? The Church, in my estimation, should make money in order to disseminate its teachings as widely as possible; this current debate gives the appearance (accurate or not) of disseminating its teachings in order to make money.
In my Family Law class, I press students to articulate a compelling state interest in banning polygamy if, in the post-Lawrence world, such a ban cannot rest on social tradition or straightforward moral condemnation. We manage to extract a few possibilities, but it's tough to find any that justify a categorical prohibition. Apparently the Canadian government is having similar difficulties.
