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.

Tuesday, June 7, 2005

Subsidiarity in the Real World

Thanks to Rick for his response and to Tom for his questions.  Rick is correct that we are largely in agreement -- my skepticism toward pinning the subsidiarity inquiry on the wisdom of the centralized policy stems from my conviction that we can't rely on a straightforward balancing approach to determine whether the higher or lower body is the better locus of power in a given context; rather, we should presume that the lower body should have authority absent a showing to the contrary.  This does not mean that such showings cannot be made.  (Indeed, I've previously criticized the Bush Administration for appearing -- pre-9/11 -- to equate subsidiarity with a broad program of devolution.)

Tom asks whether spillover effects can justify higher-level action.  I would say it depends on the injury threatened by the spillover.  Environmental stewardship is a fairly strong justification for government action under Catholic Social Thought, and the spillover effects of air pollution would (in my view) warrant federal regulation.  (Even absent spillover, a state's failure to address its own air pollution may warrant intervention from the higher body.)  But the mere fact that the autonomy of lower bodies impacts other lower bodies is not enough to curtail that autonomy.  (An association's right to exclude, for example, is meaningless unless it impacts the freedom of other groups and individuals.)  As for the marijuana example, I would want evidence of the spillover threat posed by this particular exemption, as well as a persuasive argument that the resulting injury amounts to a significant impairment of human flourishing, properly understood.

Tom also asks whether uniformity of regulation justifies federal intervention.  Here I'm more skeptical, for efficiency concerns could eviscerate subsidiarity in a variety of contexts.  (A single state-mandated educational program for all children would be wonderfully efficient.)  If a state's citizens choose to embrace uniformity in an effort to attract business to the state, for example, I see nothing wrong with that.  But if uniformity is imposed by the higher body, that's a problem unless there is an independent showing that intervention is warranted.  In this regard, the federal government's decision to condition highway funds on states' willingness to raise the drinking age to 21 may be justified given the alcohol-related death rates of teenagers.  In most family law areas, by contrast, I believe that the current trend toward uniformity creates tension with subsidiarity, as these are issues where localities' norms and ideals should be reflected in their legal regimes, regardless of efficiency.  (Gay marriage is the leading example where a state-by-state approach is crucial, in my view.)

To be clear, these thoughts are tentative attempts to put real-world flesh on the often amorphous framework of subsidiarity.  I welcome others' views.

Rob

More on Subsidiarity and Medical Marijuana

Rick's post on the medical marijuana case posits that one could invoke subsidiarity in defense of the ruling if one thinks that a national drug policy intolerant of state opt-outs is "wise." I know Rick was playing Devil's Advocate in framing this argument, but I want to clarify what a defender of the ruling would need to show to align the outcome with subsidiarity. I resist the notion that subsidiarity allows the higher collective to usurp lower bodies whenever the collectivizing impulse is in service of a policy deemed "wise." Rather, it would seem that a critic of lower bodies' efforts to address a problem should show that the effort is misguided or inadequate in some significant sense -- i.e., that human flourishing, properly understood, requires the higher body to step in. In the context of this case, then, we can't just say that state-by-state opt outs make a national drug policy more difficult; don't we need to identify and articulate why a broader availability of state opt outs in this area would hinder human flourishing in particular and significant ways?

To take an obvious example, suppose that a state legislature decides that children would benefit if they were given at least one nutritious and balanced meal each day, and that since many children do not receive one such meal, the state will require all children to eat dinner at a government food service agency in their community. One may conclude that the benefits to children's physical health would be a positive development, but subsidiarity would never stand for such a measure -- the lower unit (family) must be protected from the higher unit (the state). California, of course, does not have the same standing as the family in Catholic Social Thought, but doesn't subsidiarity still put a thumb on the scale in California's favor, at least when aligned against the federal government? If so, don't we need to show something more than our judgment that the centralized approach promotes a wise policy?

My fear is that if the subsidiarity inquiry is allowed to turn on the purported wisdom of empowering the higher body, the doctrine will live up to its critics' allegations that it serves as an infinitely malleable rhetorical device.

Rob

Monday, June 6, 2005

Gonzales v. Raich

If Catholic legal theory has anything to say about the outcome of today's ruling in the medical marijuana case, I assume that it derives from the principle of subsidiarity.  The Supreme Court ruled that the Commerce Clause empowers Congress to trump states' authority to allow the medical use of marijuana.  In dissent, Justice Thomas writes:

[N]either in enacting the [federal statute] nor in defending its application to respondents has the Government offered any obvious reason why banning medical marijuana use is necessary to stem the tide of interstate drug trafficking. Congress's goal of curtailing the interstate drug trade would not plainly be thwarted if it could not apply the CSA to patients like Monson and Raich. That is, unless Congress's aim is really to exercise police power of the sort reserved to the States in order to eliminate even the intrastate possession and use of marijuana.

Is there any interpretation of subsidiarity that would favor giving power to the federal government in this context?  Does a state's approval of the medical use of marijuana represent a breakdown in the proper norms or acceptable outcomes of democratic deliberation so as to favor the higher collective authority stepping in?

Rob

Friday, June 3, 2005

Social Movements and Legislation

Fordham law prof Jennifer Gordon has posted a useful paper for those interested in the relationship between a social movement and its legislative achievements.  Titled "A Movement in the Wake of a New Law: The United Farm Workers and the California Agricultural Labor Relations Act," the abstract suggests that the paper may also offer insight to those seeking to bring the transformative power of faith-driven movements into the legal realm:

How does the passage of a new law affect the social movement that pursued it? Law and social movements scholarship suggests that the "implementation phase" following a legislative victory is a particularly challenging one, with agency capture, bureaucratic foot-dragging, and state co-optation undermining the movement's capacity to deliver what it has promised. This paper, however, tells a different story. In 1975, the United Farm Workers (UFW) succeeded in passing the Agricultural Labor Relations Act, an extraordinary law governing farm labor organizing in California, with provisions much more pro-worker than the National Labor Relations Act. For several years beginning in 1975, the UFW used the new law as a springboard to build its farm worker representation to new heights, despite challenges introduced by the state's comprehensive regulation of the unionization process. I analyze why the Act proved so helpful to the UFW during this period, both drawing on and contesting the more pessimistic law and social movement literature. I conclude that the implementation phase is a richer one than we commonly recognize, with possibilities that depend greatly on the political environment, the type of law in question, and on the particular movement's history, experience with law as a part of its organizing strategy, and level of cohesion and engagement at the time of the law's passage. These possibilities coexist with the tensions that inevitably plague efforts to make new rights real.

(HT: Solum)

Rob

Getting Serious About IVF

Amy Welborn posts a bill introduced in the Kentucky legislature that would make it a felony to fertilize more than one egg during IVF.  Now I certainly have some concerns for my friends and family members who have pursued IVF, but I hardly consider their efforts felonious.  I'm open to being persuaded otherwise . . .

Rob

UPDATE: Jonathan Watson emailed me his take on what the legislature's intent might be:
I think that the legislature in Kentucky is attempting to end-round therapeutic cloning. I believe that many IVF procedures create 3 blastocysts (I am unsure of the exact technical designation at that point, although I think that "fertilized egg" is a misnomer) or more, of which usually only one implants. The others are either discarded or leave the body "naturally." However, one way around directly creating "therapeutic clones" would be to initiate IVF and use the unimplanted "baby" babies from which to harvest stem cells, thereby killing them. In essence . . . IVF aborts the unimplanted children automatically. Since they are not therapeutic clones, money from insurance companies which pays for IVF for couples could be indirectly used (whether federally-provided or not) to fund stem cell lines.

Was Jesus an Embryo?

This is a question that has never crossed my mind, but Tom DeLay's recent invocation of Christ's status as an embryo in defense of all embryos everywhere has prompted Beliefnet to explore the issue in depth.

Rob

Wednesday, June 1, 2005

So Now We're Getting Moral?

In the new First Things, Joseph Bottum has a provocative article titled, "The New Fusionism" in which he addresses the fact that:

Those who believe the murderousness of abortion to be the fundamental moral issue of our times and those who see the forceful defeat of global, anti-Western Islamicism as the most pressing political concern we face . . . seem to be increasingly voting together, meeting together, and thinking together. If you want to advance the pro-life cause, you will quickly find yourself seated beside those who support an activist, interventionist, and moralist foreign policy for the United States. And, conversely, if you are serious about the war on terror, you will soon discover that you are mingling with those fighting against abortion.

This makes sense, in Bottum's view, because both issues "require reversing the failure of nerve that has lingered in America since at least the 1970s, and success in one may well feed success in the other." Traditional conservative issues have been sidelined for the moment because:

however important, they do not bear hard on the immediate question of social defeatism—on the deep changes that might reawaken and remoralize the nation. The one thing both the social conservatives and the neoconservatives know is that this project comes first.

The angry isolationist paleoconservatives are probably right—this isn’t conservatism, in several older senses of the word. But so what? Call it the new moralism, if you like. Call it a masked liberalism or a kind of radicalism that has bizarrely seized the American scene. Mutter darkly, if you want, about the shotgun marriage of ex-socialists and modern puritans, the cynical political joining of imperial adventurers with reactionary Catholics and backwoods Evangelicals. These facts still remain: The sense of national purpose regained by forceful response to the attacks of September 11 could help summon the will to halt the slaughter of a million unborn children a year. And the energy of the pro-life fight—the fundamental moral cause of our time—may revitalize belief in the great American experiment.

An interesting thesis, but it's hard for me to see the post-9/11 climate in this country as indicative of our national "remoralization." In many instances, it seems more about a self-absorbed and self-aggrandizing concern for our own physical well-being. Whatever their merits, why are the invasions of Afghanistan and Iraq more of a signal of the country's upward moral trajectory than, for example, President Clinton's failed (and largely mocked) effort to secure universal health care?

Rob

UPDATE: Matthew Festa takes issue with my characterization of the post-9/11 environment:

if you look at the 2000 election, no candidate stressed international issues and problems (especially President Bush, minus SDI). The entire election revolved around "who can best spread the goods." Those who did focus on international problems, engaged in empty moralism. Sure, we helped out in the Balkans, but that's an exception to the rule (and we didn't even use ground troops)

After 9/11, America woke up from this slumber and took action. You may not like the action, but the action itself is not reducible to "self-absorption." America has gone out of its way to promote democracy (at great cost to itself) in both Afghanistan and (especially) Iraq. In addition, it has promoted democracy in the Ukraine, Lebanon, Egypt, and other countries where it didn't exist before. If you are going to make the claim that these actions are "concern for our own physical well-being," then you are going to have to explain how the sacrifices made fit into your thesis.

I did not mean to suggest that there are not noble elements of self-sacrifice on display in our current foreign policy.  But as I've argued earlier, there is an unmistakable pursuit of self-interest regardless of cost to others, typified both by Bush's stated justification of the war on his unwillingness "to stake one American life on trusting Saddam Hussein," and on his assertion that the chaos in Iraq has a positive aspect because it allows us to battle the terrorists over there instead of here.

Festa also asserts that Clinton's health care plan deserves to be mocked.  That might be.  I'm not defending its terms, but simply pointing out that it represented just as morally driven and bold of a change in course for American policy as an increasingly interventionist democratization project does.  The fact that discussions of universal health care have largely fallen off the radar screen represents a huge void in our country's "remoralization," regardless of our military actions overseas.  Can and should the "war on terror" be a morally laden exercise?  Certainly, but we shouldn't pretend that the moral compass of the country is defined by the electoral power of the pro-invasion / anti-abortion overlap.

Rob

Tuesday, May 31, 2005

Public schools, Catholicism, and "Confusion"

I just want to add one additional criticism to Rick's thoughtful dissection of the court ruling barring parents from exposing their child to Wicca given his attendance at a Catholic school. If a child's "confusion" arising from the conflict between the messages expressed in the home and school environments becomes a proper ground on which to define the child's best interests, religious folks of all stripes are in for a rough ride. I haven't read the opinion itself, but it seems that the logic could apply equally to Catholic parents sending their child to public school (or to a secular private school, if the voluntariness of the attendance decision undergirds the court's reasoning). A court could reason that exposure to Catholicism creates too much confusion for a child exposed to public school values, particularly in the areas of homosexuality and gender equality. Another reason to defend government neutrality as an (admittedly elusive) guiding ideal in this area.

Rob

Thursday, May 26, 2005

The Biography of a Bad Statistic

William & Mary law prof Eric Chason sent me this link debunking the claim (previously discussed on MoJ) that abortions have increased under George W. Bush's presidency.

Rob

More on Gambling

Thanks to the PPK Blog and to St. Thomas prof Bob Kennedy for responding to my question on gambling by directing me to the Catechism:

2413 Games of chance (card games, etc.) or wagers are not in themselves contrary to justice. They become morally unacceptable when they deprive someone of what is necessary to provide for his needs and those of others. The passion for gambling risks becoming an enslavement. Unfair wagers and cheating at games constitute grave matter, unless the damage inflicted is so slight that the one who suffers it cannot reasonably consider it significant.

This standard sheds limited light on the gambling phenomenon in modern society.  Is gambling only problematic when it becomes addictive, or when it directly undermines the financial stability of an individual or his immediate family?  For example, does the emerging centrality of Las Vegas to the American cultural experience pose any concerns, even if most of the pilgrims are firmly middle class?  I confess to enjoying myself thoroughly at poker night during law school, but I was taken aback a few months back when my fourth-grade nephew sat me down to teach me the intricacies of "Texas Hold 'Em."  It seems to me that gambling's capture of mainstream America represents a key culture war front for Catholic social thought that has been woefully undermanned, especially in comparison to the hot button sex issues.

(But note that it has not been completely unmanned, of course, as I found this interesting letter from the Massachusetts Catholic Conference opposing proposals to expand gambling there.  Noting the dangers of addictive gambling and the socioeconomic impact, the writer notes in passing the "unfortunate" reliance of many Catholic organizations on games of chance.)

Rob