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, November 7, 2004

Reframing Outka's Premise

Chuck Roth, of the Midwest Immigrant and Human Rights Center, weighs in on Professor Outka's stem cell argument:

It seems to me that the main problem with Prof. Outka's theory is that the option is not between useless death and useful death - it's between potentially useful death and continued suspended "potentiality" (to use Prof. Outka's phrase). This is not someone who is going to die in 5 minutes - this is someone who is going to continue in potentiality till 50,000 A.D. or a power failure, whichever comes first. Even operating under those moral assumptions, it's hard to say that the condition of potentiality is "permanent" when there's untold eons in which that fertilized egg might be implanted, nurtured, and born.

What struck me, though, was Prof. Outka's assumption that these zygotes / unborn children will be discarded in any event. Why should that be assumed? Setting aside the wishes of the couples involved, I see nothing in Roe or its progeny which requires the state to permit this result. Why would it be constitutionally problematic for the state to assume custody of fertilized ova, where couples have no further use for them? One could argue the takings clause - but in light of the recent SupCt decision in Brown v. Legal Foundation of Washington (2003) (the IOLTA case), we focus on what is lost by the owner, not what is gained. Since the net loss to a couple wishing to destroy the unborn zygote is zero, no compensation is owed where the state takes custody. To the extent that some fundamental right to procreate exists, this kind of requirement would not substantially burden that right (at least, not so long as government foots the bill).

Perhaps this is the disconnect in the stem cell issue that many people sense. Sure, experimentation sounds bad, but how can one advocate for just letting these unborn children die? Take away that assumption, and you force the state to make an active decision to kill (which will be more difficult) in order to experiment on the unborn. Moreover, you make a public point about when life begins.

As I think about it, this issue has the virtue of involving the definition of human life, without involving anything which would require a woman to procreate when she doesn't want to. As such, it could present a vehicle for undermining Roe, as it would bring home yet again that the Roe decision effectively defined human life, even where it claimed not to be doing so. Do you happen to know if anyone is thinking along these lines, as Congress and the President address these issues in the coming months (in the brave new world of a potentially pro-life senate)? If this idea hasn't been broached with the pro-life people in DC and elsewhere, perhaps it should be...

Saturday, November 6, 2004

Enlisting Jesus in the Stem Cell Cause

Lalor Cadley seems to suggest that Jesus would be in favor of embryonic stem cell research (see Michael's post below), citing scripture passages establishing his compassion and healing power. One verse she omits is his caution that "as long as you did not do it for one of these least ones, you did not do it for me." (Matt. 25:46) Certainly Jesus weeps for all those who suffer from the various afflictions that are part of life in this fallen world. But that's a far cry from establishing that Jesus would embrace an instrumental vision of human life when it comes to the alleviation of such suffering. If Jesus weeps for those suffering from crippling diseases, he surely weeps for those who never get to see the light of day. Do I believe that an embryo should have identical protection under law as a two year-old child? No. But I still see enormous danger in our headlong pursuit of medical miracles through the conversion of human life into another research tool. It is no answer to say that these embryos will be destroyed eventually anyway (although it does underscore the trouble with the reproductive-therapy industry that has made that destruction inevitable). One of my legal ethics students defended Nazi researchers whose work on concentration camp inmates led to medical advances, arguing that the inmates were likely to die anyway. I'm not equating the two scenarios in terms of their moral significance, but I think the Nazi example highlights the moral bankruptcy of the proffered justification.

Ms. Cadley says that we must tread carefully in this area. What does that mean specifically? Even taking the existing number of available embryos as an unfortunate given, how can we be assured that giving the green light to embryonic stem cell research will not create market incentives to increase the number of embryos available? Is she prepared to create the massive regulatory/enforcement scheme necessary to stem market forces in this area? Is such a scheme even conceivable?

I agree that human suffering is a horrible part of life. I agree that Jesus longs for humanity to be made whole. But that does not settle the moral (or biblical) inquiry. Embryos, in Ms. Cadley's view, should not be treated as "sacred cows." Very well, what should they be treated as? Research tools? Research tools that we should be especially careful with? Research tools, but only if they already missed out on their chance to develop into a baby? Sacred objects generally, with only a few unfortunate ones being treated as research tools? I don't pretend to have the answers to all these questions, but I certainly can't cover over the moral dilemmas inherent in the inquiry with self-serving scriptures about the nature of Jesus.

Rob

Wednesday, November 3, 2004

Evangelism Tip of the Day

After a season of passionate disagreement over the election, I think it's important to begin this new chapter on Mirror of Justice by recognizing certain basic truths we all can agree on, including this cautionary example of an inherently self-defeating method of engaging the culture with the Gospel.

Rob

Tuesday, November 2, 2004

The Prayers of a Self-Governing People

Washington & Lee politics prof Lucas Morel has contributed an election day reflection for Christianity Today. Here's an excerpt:

"One Nation Under God" is an abiding theme in American politics. It reminds us that our politics are just as much a part of our spiritual life as any other activity or institution ordained by God (Rom. 13:1). It speaks of God's providence over our nation, which creates a responsibility in us to act as a people under God's judgment as well as his blessing. In short, we must govern ourselves according to principles of justice and right, and not merely majority rule or numerical might.

A verse related to this theme is found in Psalm 33:12: "Blessed is the nation whose God is the Lord." Some might misinterpret this as a boast: "Look at us; God is on our side." But reading the rest of the psalm, we find that it declares the simple but all-important truth that those who worship the one true God will discover a God who seeks out all human beings, to bless them richly with his presence and supply. Historically, the people of Israel were chosen by God to be a blessing unto the nations. With the coming of Christ, and his rule over the church, the nations witnessed a new and growing people of God, drawn from all tongues and tribes, and called to be a blessing to all nations by teaching them about the present and future rule of the Lord Jesus Christ.

As we come at last to the decisive election day—and as we anticipate the bitter wrangling that may well follow—we do well to read and reflect upon the remaining verses of Psalm 33 for the revelation they bring about the one true God who rules the heavens and the earth, and what he intends for those who put their trust in him:

12 Blessed is the nation whose God is the LORD, the people he chose for his inheritance.
13 From heaven the LORD looks down and sees all mankind;
14 from his dwelling place he watches all who live on earth—
15 he who forms the hearts of all, who considers everything they do.
16 No king is saved by the size of his army; no warrior escapes by his great strength.
17 A horse is a vain hope for deliverance; despite all its great strength it cannot save.
18 But the eyes of the LORD are on those who fear him, on those whose hope is in his unfailing love,
19 to deliver them from death and keep them alive in famine.
20 We wait in hope for the LORD; he is our help and our shield.
21 In him our hearts rejoice, for we trust in his holy name.
22 May your unfailing love rest upon us, O LORD, even as we put our hope in you.

Rob

Monday, November 1, 2004

Christians and Voting

Earlier I defended Mark Noll's decision not to vote for President against Chuck Colson's charges that Noll is shirking his Christian obligations. I've received some thoughtful objections to my invocation of Hitler-Mussolini in the course of that defense. Professor John O'Callaghan asks "Isn’t Colson’s point easier to make because neither George Bush nor John Kerry is the moral and political equivalent of Hitler or Mussolini? The more political rhetoric on both sides notwithstanding, are we really living in anything like Nazi German or Fascist Italy?" (His own helpful essay is the subject of this earlier post.) And reader Patrick O'Hannigan writes:

Did you really mean to answer Colson's substantive point by painting with an entirely hypothetical brush, or are you implying that the "moral conflict many pro-life progressives are facing" really is on the order of Hitler vs. Mussolini? The first approach is weak; the second dishonest.

Read Colson's argument again: he alludes to a search for the best people we
can find to lead us. In what scenario would that yield a choice between
Hitler and Mussolini? None that I can think of. Even in purely historical
terms, Hitler and Mussolini shared the stage with Churchill and Roosevelt,
who were manifestly better men, in spite of their considerable flaws.

Wondering what Colson would say to Noll if different candidates were
involved is the rhetorical equivalent of a parlor game: by following Alice
down the rabbit hole to Wonderland, it implicitly concedes that Colson has
the stronger argument in the reality we already know.

I don't read Colson's argument so narrowly -- he's not telling Noll that Christians should vote in light of the candidates' merits in this particular election. Rather, he seems to cast voting as a blanket obligation. He plainly states that "voting is not an option for Christians," but a "biblical duty." His foundation for this assertion is not convincing. Colson's characterization of American Christians as God's "instruments for appointing leaders" is suspect, especially in light of his supporting assertion that "Just like Samuel in the Old Testament, we are commissioned to find the very best people we can who are best able to lead us." Samuel received direct revelation from God that Saul (and later David) were to lead Israel. As a one-person appointments committee, he anointed them. Deal done.

How is this biblical cherry-picking helpful to figuring out a Christian's voting obligations in 21st century America? Certainly it shows that God acts in human history, but it does not show that the Christian's most effective option for serving as an instrument of God's purpose is to support one of two candidates offered up every four years by secular political parties, as though God has designated either the Democrat or Republican each time around, and we simply need to decipher which one. (If the obligation stems from the duty to minimize harm/evil, then third-party candidates are not viable options, I presume, for they present no realistic chance of being elected. Besides, God would never back a certain loser, right?) I agree that Christians should work to elect the best leaders possible, but that work won't always result in an election-day choice that all Christians can embrace.

Even if Colson's conception of civic obligation can be narrowed to the Kerry-Bush choice, I think it's a non-starter. If we're unable to construct a blanket obligation for Christians to vote, how can we construct that obligation in this election? If there's one thing that the discussion on Mirror of Justice has evidenced, it's that reasonable, thoughtful Christians can disagree passionately about the moral status of the Bush and Kerry candidacies. Further, the moral failings of each candidate's agenda do not necessarily lend themselves to ranking in a way that makes a morally problematic candidate palatable. ("Disregard of the international community is bad, lax environmental protection is really bad, but abortion is really really bad, so I'll vote for Bush.") I certainly was not intending to equate Bush-Kerry with Hitler-Mussolini, but if we can't discern an obligation to choose between the latter, I don't think there's an obligation to choose between the former.

Rob

Colson to Noll: Get Out of Utopia

Evangelical leader Chuck Colson has criticized Mark Noll for espousing a "none of the above" approach to the election. Colson argues that Noll's position:

is dead wrong and damaging to democracy. It’s the utopian notion which assumes divine perfection in fallen humans. His assumption that we can support only candidates who have perfect scores according to our reading of the Bible makes me wonder how he votes at all. And if that’s the standard, all of us should stop voting.

But that’s exactly what the fundamentalist movement did in the early part of the twentieth century, the movement Mark Noll so correctly criticizes. Their error was allowing perfectionism to get in the way of their responsibility to act for the common good. It’s an error we can’t afford to repeat—not this year, not ever.

Voting is not an option for Christians. It’s a biblical duty, because by voting we carry out God’s agency; we are His instruments for appointing leaders. Just like Samuel in the Old Testament, we are commissioned to find the very best people we can who are best able to lead us. Not to vote, or to turn down both presidential candidates because they’re not perfect on a biblical score sheet, is a dereliction of biblical responsibility.

Read the rest here. (Thanks to CT for the lead.)

I'm wondering, would Colson insist on a Christian's duty to vote regardless of the options? Hitler versus Mussolini? It's an easy case for Colson to make now, because he's a big fan of Bush's, but were he to face the moral conflict that many pro-life progressives are facing, would it be so easy for him?

Rob

Nose-Holders for Nader?

One obvious conclusion to draw from this election debate is that the nuanced worldviews of Catholic moral and social teaching do not find an especially welcoming home in a two-party system. The Democratic and Republican parties are able to divide the spoils of our enormously diverse citizenry into overbroad and misleading categories, offering fixed agendas on a take-it-or-leave-it basis. Pro-life Democrats are forced to lend support to the "mainstream"-ing of abortion and start-up of the embryonic stem cell assembly line, and Common Good Republicans have to narrow their conceptions of "common" and "good" to justify embracing a corporate, devolutionary, and us-versus-them agenda. If the political landscape was populated by an array of parties, battling it out for hearts and minds, not in a zero-sum contest of blue state / red state polarization, but as part of a system where coalition building and intercommunity dialogue were an essential part of politics, would not that be fertile ground for the entry of policy positions that are not amenable to either/or classification?

So instead of holding our noses and voting for one or the other, or staying home entirely (which will be attributed in all likelihood to apathy, not principled objection), is there something to be said for casting a principled vote in favor of a multi-party system? Especially for those of us who are not in contested states, wouldn't a vote for Nader (or other third-party candidate) represent a step in the right direction, even if the particular candidate may not be a substantive improvement on Bush or Kerry?

Rob

Friday, October 29, 2004

Noll's Lament

Readers might be interested to know that in an email, Mark Noll clarified that his thoughts on the election (see earlier post) could best be understood as a "Lament for not having a Christian Democrat tradition in the U.S." Perhaps another indication of the void to be filled by the Seamless Garment Party?

Rob

Tuesday, October 26, 2004

The Importance of Choosing Neither

Mark Noll (see below) is not alone. Another one of my favorite Christian thinkers, Alasdair MacIntyre, is also taking the "none of the above" approach, and he defends his decision in terms of obligation:

When offered a choice between two politically intolerable alternatives, it is important to choose neither. And when that choice is presented in rival arguments and debates that exclude from public consideration any other set of possibilities, it becomes a duty to withdraw from those arguments and debates, so as to resist the imposition of this false choice by those who have arrogated to themselves the power of framing the alternatives. These are propositions which in the abstract may seem to invite easy agreement. But, when they find application to the coming presidential election, they are likely to be rejected out of hand. For it has become an ingrained piece of received wisdom that voting is one mark of a good citizen, not voting a sign of irresponsibility. But the only vote worth casting in November is a vote that no one will be able to cast, a vote against a system that presents one with a choice between Bush's conservatism and Kerry's liberalism, those two partners in ideological debate, both of whom need the other as a target.

Why should we reject both? Not primarily because they give us wrong answers, but because they answer the wrong questions. What then are the right political questions? One of them is: What do we owe our children? And the answer is that we owe them the best chance that we can give them of protection and fostering from the moment of conception onwards. And we can only achieve that if we give them the best chance that we can both of a flourishing family life, in which the work of their parents is fairly and adequately rewarded, and of an education which will enable them to flourish. These two sentences, if fully spelled out, amount to a politics. It is a politics that requires us to be pro-life, not only in doing whatever is most effective in reducing the number of abortions, but also in providing healthcare for expectant mothers, in facilitating adoptions, in providing aid for single-parent families and for grandparents who have taken parental responsibility for their grandchildren. And it is a politics that requires us to make as a minimal economic demand the provision of meaningful work that provides a fair and adequate wage for every working parent, a wage sufficient to keep a family well above the poverty line.

Read the rest here. (Thanks to reader Randy Heinig and Midwestern Mugwump for the lead.)

Rob

Monday, October 25, 2004

None of the Above

Mark Noll, one of my favorite Christian thinkers, has laid out an alternative approach to this election:

As has been the case for the past few presidential elections, on Election Day I will almost certainly cast my vote once again for none of the above. Here is why:

Seven issues seem to me to be paramount at the national level: race, the value of life, taxes, trade, medicine, religious freedom and the international rule of law. In my mind, each of these issues has a strong moral dimension. My position on each is related to how I understand the traditional Christian faith that grounds my existence. Yet neither of the major parties is making a serious effort to consider this particular combination of concerns or even anything remotely resembling it.

In searching for a party that is working for something close to my convictions, I am not necessarily looking for a platform supported by overtly expressed religious beliefs. It would be enough to find candidates promoting such positions by reference to broad social goals and general patterns of American democratic tradition. In fact, because each of these issues is of vital national concern for people of all faiths (and none), I am eager to find public voices willing to defend convictions similar to my own in generic social terms rather than with specifically religious arguments.

My disillusionment with the major parties and their candidates comes from the fact that I do not see them willing to consider the political coherence of this combination of convictions or willing to reason about why their positions should be accepted—much less willing to break away from narrow partisanship to act for the public good. Broad principles and particular interests have never in the history of the republic been more confusedly mixed than they are today.

Read the rest at The Christian Century. (Thanks to Christianity Today for the lead.) Perhaps the Seamless Garment Party will bring Noll back to the voting booth in 2008?

Rob