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.

Wednesday, November 24, 2004

Immigration Law and the Human (Non-) Person

Chuck Roth of the Midwest Immigration and Human Rights Center offers the following response to my question on the compatibility of immigration law with Church teaching:

One troubled by Roe v. Wade's finding that unborn children are non-persons can hardly fail to be similarly troubled by cases like United States ex rel. Turner v. Williams, 194 U.S. 279, 292 (1904) (Excludable alien not entitled to First Amendment rights, because "he does not become one of the people to whom these things are secured by our Constitution by an attempt to enter forbidden by law"), Kwong Hai Chew, supra, at 596, n. 5 ("The Bill of Rights is a futile authority for the alien seeking admission"), and even, in modern times, Chief Justice Rehnquist's opinion in U.S. v. Verdugo-Urquidez, 494 U.S. 259 (1990) (questioning "whether the protections of the Fourth Amendment extend to illegal aliens in this country," suggesting that they are not "people" within meaning of the Fourth Amendment). It does seem that when we as a species wish to deprive someone of rights to which they are otherwise entitled, we tend to label them as non-persons. To borrow a phrase from the first Pres. Bush, when someone argues that a member of our species is a non-person - reach for your wallet.

Immigration Law and Family Breakdown

I don't know much about immigration law, but there seems to be an undeniable tension between a nation's right to maintain its borders and the Church's emphasis on the primacy of the family, as reflected in this heart-breaking story of deported parents leaving children behind.  I'm wondering if Michael Scaperlanda or other immigration law experts have some insight on this issue.

Rob

Tuesday, November 23, 2004

More on faith-based law schools

Our own Professor Bainbridge has a nice post on the Times' discovery of faith-based legal education (see my earlier post on that discovery), as does Ann Althouse.  Midwestern Mugwump asks, "Where is Notre Dame in all of this?"

Rob

Sunday, November 21, 2004

No such thing as bad publicity?

The New York Times explores the new faith-based law school "movement" -- apparently consisting of Ave Maria, Regent, St. Thomas, and Liberty. The first three don't get a whole lot of attention in the article, primarily because they don't have Jerry Falwell ladling out quotes on their behalf. Falwell helpfully explains to the Times that "If our graduates wind up in the government, they'll be social and political conservatives. If they wind up as judges, they'll be presiding under the Bible." I have a difficult time believing that the folks at Liberty are sacrificing their time, talent, and treasure simply to create a cookie-cutter educational process churning out spitting images of Falwell, especially in light of this earlier post. But if they hope to capture the attention of the academy with a grander vision of the role faith can play in legal education, they should probably urge their founder to start keeping his own pipe dreams to himself.

Rob

Thursday, November 18, 2004

"Mere clusters of cells"

Notre Dame philosophy prof John O'Callaghan shares my reaction to the New York Times editorial on human cloning; he observes that labeling an embryo as a:

"mere cluster of cells" is not a scientific judgment, even if uttered by a scientist, no more so than if a scientist were to look at a painting, Seurat's "A Sunday on La Grande Jatte" for example, and utter the claim "that is a mere cluster of pigments."

We call people like that ignorant, however much specialized training they may have in some field. What we want to know is why it is in fact more than just "a mere cluster of pigments." It stretches the bounds of credulity to imagine praticing scientists doing their jobs in their labs walking around talking about the "mere clusters of cells in my petri dish." In fact, I do not believe many at all would say this. Look at their practice. The very fact that they are in their petri dishes presupposes they are not "mere clusters of cells."

If they were mere clusters of cells, why are they in their petri dish? Why are they so interested in this "mere cluster of cells" and not some other one? Why as a part of good scientific practice do they attempt to use sterile petri dishes in their studies, the sterility of which requires that they eliminate any "mere clusters of cells" from the environment of the petri dish? No. They know that they are studying no mere cluster of cells, but a certain kind of cluster of cells exhibiting a biological unity ordered toward a certain kind of physical development. In their actual scientific practice, they want to know why it is in fact more than just a "mere cluster of cells." One will learn nothing specific about the cloning of human beings by studying a mere cluster of cells that happens to be a labrador embryo, and even less from a "mere cluster of cells" that has no biological unity to it. Indeed, that is why it is even silly to refer to this supposed "mere cluster of cells" as "potential life." It is identifiably a certain kind of life undergoing biological processes of life distinctive of the kind of being it is in the stage of development it is. If it were not such an identifiable kind of life, the scientist would not be studying it.

If someone who happens to be a biologist says that what he is studying is a "mere cluster of cells," he is not speaking or acting as a biologist when he does so. No biologist studies "mere clusters of cells." He is speaking and acting politically. And the history of our culture tells us that when someone starts saying that a living thing is "a mere X" we should watch our wallets, and even more so our backs.

Wednesday, November 17, 2004

What Moral Dilemma?

Sometimes it's a bit too easy to pick on the New York Times, but I couldn't let this editorial pass without comment. In urging the UN to reject a proposed comprehensive ban on human cloning, the Times offers the following insight into the debate:

The United States, the Vatican and a slew of developing countries have endorsed a resolution put forth by Costa Rica that would outlaw all cloning, whether for reproductive, therapeutic or research purposes. That is an extreme measure that seeks to snuff out all research on microscopic entities that religious conservatives consider potential babies but scientists consider mere clusters of cells in a laboratory dish.

Under these terms, what right-thinking person could possibly object to the manufacture of embryos for research purposes? After all, embryos are simply "microscopic entities." True, some (crazed) "religious conservatives" consider them "potential babies." (How exactly are embryos not potential babies?) Thankfully, though, "scientists" (that's right, every single one of them) know that these entities are "mere clusters of cells in a laboratory dish." No worries. Don't let the Bush Administration, the Pope, and the "slew of developing" (i.e., backward) countries fool you. Listen to the Times, and let your moral dilemmas melt away . . .

Rob

Thursday, November 11, 2004

Media and Moral Responsibility

In the October 22 Chronicle of Higher Education, George Marsden notes the high proportion of "seriously religious Americans," but points out that:

"our culture is also strikingly secular, even profane.  Part of the paradox is explained by the many essential activities in a technological capitalist society like ours that allow little room for religious groups to exercise substantive control.  Our government is officially separated from religions and depends on coalitions that can bring people with different beliefs together.  Businesses serve diverse markets and focus on what will turn a profit.  The media's commitments to freedom, diversity, and profit foster mass entertainments that would have shocked older religious sensibilities."

In today's New York Times, Frank Rich has a (not suprisingly) less nuanced take:

"There's . . . one problem with the storyline proclaiming that the country swung to the right on cultural issues in 2004. Like so many other narratives that immediately calcify into our 24/7 media's conventional wisdom, it is fiction. Everything about the election results - and about American culture itself - confirms an inescapable reality: John Kerry's defeat notwithstanding, it's blue America, not red, that is inexorably winning the culture war, and by a landslide. . . .

The blue ascendancy is nearly as strong among Republicans as it is among Democrats. Those whose "moral values" are invested in cultural heroes like the accused loofah fetishist Bill O'Reilly and the self-gratifying drug consumer Rush Limbaugh are surely joking when they turn apoplectic over MTV. William Bennett's name is now as synonymous with Las Vegas as silicone. The Democrats' Ashton Kutcher is trumped by the Republicans' Britney Spears. Excess and vulgarity, as always, enjoy a vast, bipartisan constituency, and in a democracy no political party will ever stamp them out.

If anyone is laughing all the way to the bank this election year, it must be the undisputed king of the red cultural elite, Rupert Murdoch. Fox News is a rising profit center within his News Corporation, and each red-state dollar that it makes can be plowed back into the rest of Fox's very blue entertainment portfolio. The Murdoch cultural stable includes recent books like Jenna Jameson's "How to Make Love Like a Porn Star" and the Vivid Girls' "How to Have a XXX Sex Life," which have both been synergistically, even joyously, promoted on Fox News by willing hosts like Rita Cosby and, needless to say, Mr. O'Reilly. There are "real fun parts and exciting parts," said Ms. Cosby to Ms. Jameson on Fox News's "Big Story Weekend," an encounter broadcast on Saturday at 9 p.m., assuring its maximum exposure to unsupervised kids.

Almost unnoticed in the final weeks of the campaign was the record government indecency fine levied against another prime-time Fox television product, "Married by America." The $1.2 million bill, a mere bagatelle to Murdoch stockholders, was more than twice the punishment inflicted on Viacom for Janet Jackson's "wardrobe malfunction."

None of this has prompted an uprising from the red-state Fox News loyalists supposedly so preoccupied with "moral values." They all gladly contribute fungible dollars to Fox culture by boosting their fair-and-balanced channel's rise in the ratings. . . .

Mr. Murdoch and his fellow cultural barons - from Sumner Redstone, the Bush-endorsing C.E.O. of Viacom, to Richard Parsons, the Republican C.E.O. of Time Warner, to Jeffrey Immelt, the Bush-contributing C.E.O. of G.E. (NBC Universal) - are about to be rewarded not just with more tax breaks but also with deregulatory goodies increasing their power to market salacious entertainment. It's they, not Susan Sarandon and Bruce Springsteen, who actually set the cultural agenda Gary Bauer and company say they despise."

Rich raises some good points, but voting based on media culture seems a fairly tricky business, especially given both parties' failures in this area.  And while government certainly has a role to play, get-tough government measures are not necessarily the perfect remedy, as they bring their own unfortunate and often unintended consequences (see, e.g., stations pulling "Saving Private Ryan" for fear of FCC penalties).  Even grass-roots protests seem ineffective, serving only to bring free publicity to the disfavored project (see, e.g., the outrage over the new film about Alfred Kinsey, sure to boost its box office).  Perhaps this is another area where cultural change begins at home, with engaged parents who not only monitor their children's viewing habits and teach discerning media consumption, but also practice what they preach.  (As Mister Rogers said, "The television may be the only electrical applicane that's more useful after it's been turned off.")  A seemingly hopeless cause, I admit, but maybe part of building a culture of life is reversing the culture of coarseness, one family at a time.

Rob

Wednesday, November 10, 2004

The Catholic Vote

As was made obvious by the conversations on Mirror of Justice, the moral issues implicated by this presidential election prompted a lot of soul-searching among many thoughtful Catholics.  The outcome of this soul-searching may have determined the President, as reflected in this Beliefnet analysis:

"Bush’s strong performance among Catholics, it turns out, was crucial to his victory. Bush won Catholics 52%-47% this time, while Al Gore carried them 50%-46% in 2000. If Kerry had done as well as Gore, he would have had about a million more votes nationwide. According to Gallup Polls, only one Democrat since 1952 (Walter Mondale in 1984) lost the Catholic vote by this large a margin.

The Catholic impact was starker in key states. In Ohio, Bush got 55% of the Catholic vote in 2004 compared to just under 50% of them in 2000. That means a shift of 172,000 votes into the Republican column. Bush won the state by just 136,000 votes this year.

In Florida, Catholics made up 26% of the electorate in 2000. This year, they made up 28%. In 2000, 54% of Catholics went for Bush; in 2004, 57% of them voted for him. The combination of those two factors meant a gain of 400,000 voters in the Sunshine State—about Bush's margin of victory."

Rob

Sunday, November 7, 2004

"Nothing is Lost" -- Really?

In defending embryonic stem cell research, Professor Outka (see Michael's post) embraces the "nothing is lost" argument, under which the intentional killing of an innocent life is justified if the innocent will die in any case, and other innocent life will be saved. This defense encompasses not just research on embryos, of course, but also research on concentration camp inmates, death row prisoners, even terminally ill patients. Thankfully, Professor Outka resists the argument's full impact, applying it only to anencephalic infants and embryos. The key, for Outka's analysis, is the embryo's "perpetual potentiality." In light of this status, the "nothing is lost" argument can carry the day with minimal moral fallout.

I certainly prefer Outka's grudging and narrow concession on life's sanctity to the across-the-board utilitarian exuberance of folks like Peter Singer. But there is still a disturbing cost-benefit mindset that underlies his analysis, and I'm not sure he faces it in all its starkness.

First, what precisely is the morally relevant object of the frozen embryo's potentiality? The embryo is not potential life -- it is life, albeit static and (relatively) simple. So what trait does the embryo lack that would make the difference for Outka? He mentions self-awareness a lot -- is self-awareness what makes life sacred? Why? Where is the line that lets us treat the frozen embryo as an instrument, rather than as an end in itself? (The "nothing is lost" principle can't circumvent this line of inquiry unless we're willing to defend experiments on death row inmates.) Outka tries to make us believe that we're not conceding much on the moral front under his approach, but it seems we're still blurring the fundamental boundary afforded by treating all human life as inherently (not instrumentally) valuable.

Second, Outka laments the state of affairs under which "excess embryos" are a given. But if he really believes that we, as a society, should do what we can to alleviate this problem, how can he propose that we harness our medical advancements to the continuation of the problem? If embryonic research is embraced by society as the path to ending much human suffering, the embryos churned out in reproductive therapy will no longer be viewed as "excess," but rather as a key pipeline of human progress.

Rob

Human Life: Location-Dependent?

Fr. Robert Araujo, S.J., a law prof at Gonzaga, offers these thoughts in response to Michael Perry's posting of the Outka and Cadley pieces on embryonic stem cell research:

First of all, there are life advocates who are quite aware of the political, social, economic, legal, and moral issues that are at stake. I am intrigued by the language that uses formulations like "potential life", "living cells", and "the need to help innocent and suffering people." I was taken by Ms. Cadley's reference to scripture, including the Psalms. She apparently has not yet reached Psalm 139, but if she has, she did not indicate this. I may be viewed as one of those ideologues who promotes the "theology of the few." But, it is essential for anyone who enters the debate on whether to ban or endorse embryonic stem cell research to be mindful of the nature of the subject that is at the core of the debate.

The scientific methodology involved with embryonic stem cell research is indeed complex regardless of whether the source of the stem cells is from aborted children (some would argue fetuses or tissue), in vitro fertilized embryos, or cloned embryos. But the reality of what the researcher is about to take apart is quite simple: it is a human life. It is not a cell or cluster of cells, it is not a potential human being, it is something that you and I were in the continuum of our unique human development. Our lives started and continued. The lives of the "donors" of stem cells have also started. Why is it that their lives may be sacrificed? Many advocates who support embryonic stem cell research do not identify and do not discuss this utilitarian problem, but there it is staring us in the face.

There is often heard from supporters of stem cell research that the embryo (it does not matter if the embryo was formed by cloning or by in vitro fertilization) will never be implanted in a womb; therefore, one need not be concerned about the "potential" human life that will be sacrificed in medical research that may help lives that now exist. This argument from the geography of the embryo's location must fail. A similar rationale was used in Dred Scot. But Dred Scot was always who he was regardless of whether he was in a slave state or a free state. A human embryo is always a unique human regardless of whether it is in a Petrie dish, a cryogenic preservation unit, or a womb. Its geographic location does not enhance or detract from its fundamental nature as a human life in the early stages of life's continuum.

Another important point to make about the nature of the embryo and the stem cells that are constitutive of each embryo is this: the removal of the stem cells necessitated by the research to which Outka and Cadley refer inevitably and irrevocably leads to the death of the embryo. I never cared much for Monty Python skits, but one sticks out in my mind that illustrates well the grave moral concerns associated with embryonic stem cell research as it currently exists: one day an official from the organ donor bank visits a residence of a prospective donor and inquires whether Ms. Smith is home; indeed she is and she answers the door. The organ donor bank representative then says, "Ah, good, we're here for your liver!" But, Ms. Smith protests, and a robust debate ensues. Finally, the official says, "Well, there must be another reason why we can't have your liver?" Ms. Smith responds in the affirmative and says, "Yes, I'm using it!" The same goes for the embryo whose stem cells are being targeted for extraction: the embryo needs its stem cells because its life is dependent on them, too.