One Sunday morning in Manhattan a few years ago, I was with my daughters and was confronted with a particularly lewd billboard. I had never done so before, but I decided to call the city's 311 information number to complain. I spoke to the operator for more than ten minutes, as he tried to find any suitable category for recording the complaint -- there were countless categories, but nothing remotely relevant for a billboard depicting two nearly naked models engaged in an obvious sexual act. No "public indency" category, no "inappropriate advertising" category, nothing. In the end, the operator told me to call the police if it was really a problem. The not-so-subtle message was that I was Ward Cleaver, and this was no longer the 1950s.
I'm no longer a New York City resident, but I thought of that 311 operator when I read about the new government-sponsored ad campaign launched in the city on Valentine's Day. That operator won't lodge a complaint about indecent billboards, but he will gladly take my order for free condoms! For the record, I do not reflexively dismiss every attempt by a government to facilitate safer sex among its residents. Indeed, I still struggle mightily to understand the Church's opposition to the distribution of condoms among high-risk populations in Africa, for example. But the Church's hardline position may become significantly more compelling if the New York model becomes the alternative: i.e., does a "safe sex" government initiative mean having tax dollars implore every resident, young and old, to "get some?"
In Sunday's New York Times, William Saletan reviewed Robert George's and Christopher Tollefsen's new book, Embryo: A Defense of Human Life. George and Tollefsen responded, and now Saletan has made some additional points in reply. It's a debate that is helpful and productive, shedding more light than heat. An excerpt from George and Tollefsen:
In attempting to resist our conclusion that human embryos ought not to be exploited and killed, while at the same time acknowledging their moral standing and the special respect they are owed, Saletan gets himself into a jam. To meet our argument that a human embryo is, as a matter of scientific fact, a developing human being—i.e., a living member of the species Homo sapiens in the earliest stages of development—and thus, as a matter of basic justice, a possessor of inherent dignity and a right to life, Saletan is driven to deny that human embryos are whole entities, as opposed to mere parts (such as gametes, tissues, or organs). He denies that embryos are determinate individuals, and he seems to doubt that they are organisms at all. But if these denials and doubts are warranted, then there is no rational basis for believing that human embryos “deserve our respect” or that “we should never create or destroy them lightly.” Saletan is trying to find a plot of solid ground lying between the views of radical liberal bioethicists, on the one side, and defenders of the pro-life view, on the other. The failure of his effort shows that the middle ground is nothing but quicksand.
An excerpt from Saletan:
The virtue of Embryo is that the authors stake their case on science and logic, not religion. What makes you a human being, they argue, isn't a soul, but "a developmental program (including both its DNA and epigenetic factors) oriented toward developing a brain and central nervous system." They believe that this program starts at conception, and therefore, so does personhood.
I like this bet on science. It's scrupulous, brave, and constructive. Let's toss in our chips and call the bet. We'll have to accept what science shows: Conception is, as George and Tollefsen argue, the sharpest line we could draw to mark the onset of moral worth. But they, in turn, will have to accept the other side of what science shows: The lines of embryology are dotted, not solid. Such lines don't warrant severe categorical restrictions on stem-cell research or assisted reproduction.
Alabama law prof Bill Brewbaker comments on my recent posts on Barack Obama:
[Obama] and Huckabee have both exploited the (worldly) idea that things would be ok if only "people like us" were in charge (Barack: educated, smart progressives; Huck: born-again Christians). Both also talk a lot about "hope" but not so much about the issues. Talking about issues doesn't fit well with "bringing the country together." Shouldn't alarm bells go off whenever someone tells us to put our hope in Caesar? Or that Caesar will unite us? Even if Caesar is, to quote Michael Jackson, a lover, not a fighter? I voted for McCain in part because nobody's going to mistake him for the messiah.
Last week we began MoJ's fifth year of existence, and I would like to commend Prof. Brewbaker for his comment, which embodies the expansiveness of the Catholic legal theory project: a Protestant making his insightful political point by marshalling resources ranging from Holy Scripture to the King of Pop.
Confession: I attended the Dems' caucus on Tuesday night with the intention of voting for Obama, but the crush of humanity (the vast majority of whom did vote for him) made me give up and return home. Against that background, consider this op-ed forwarded to me by a student about the virtue of contemplation on Super Tuesday:
As soon as politics, for the sake of politics, becomes a society’s principle passion — its object of hope, its pearl of great price — that society has already subjected itself to a type of totalitarianism. Unwittingly, it has relinquished a citizen’s and a people’s privilege and responsibility of self-determination. It has bet the outcome of the common pursuit of happiness on the eventual good actions of chosen elite.
And consider this post from the ABC News blog about the cult of Obama. Here's the opening:
Inspiration is nice. But some folks seem to be getting out of hand. It's as if Tom Daschle descended from on high saying, "Be not afraid; for behold I bring you good tidings of great joy which shall be to all the people: for there is born to you this day in the city of Chicago a Savior, who is Barack the Democrat."
UPDATE: A reader forwarded me this related op-ed on Obama (titled "Barack Obama is not Jesus"), and he (the reader) makes a broader point:
isn't it true that at the very heart of progressivism lays the desire to subject all (or most) or human life to politics? That seems to lie at the base of Historicism which is the philosophical expression of progressivism: as the State becomes more and more "rational," experts are more and more able to govern the minutiae of human life in the name of the common good. There is less room for "little platoons" of civil society as their functions are swallowed up in the all-encompassing State. This in turn leads to greater "democracy" because the whole people are able to govern the whole of everyone else's lives through the State.
This is not to say that all modern-day progressives wish this to occur, but at the very least it needs to be addressed and explained by those who seek to take up the mantle of progressivism today.
Now is the time to register for the Religiously Affiliated Law Schools conference, hosted this year by Boston College from April 6th to the 8th. Details and registration forms are available here. The lineup of speakers includes MoJ-ers Susan Stabile and Amy Uelmen, plus a host of other legal luminaries, including David Skeel, Sam Levine, Vince Rougeau, Lucia Silecchia, Jerry Organ, Michael Broyde, Mark Osler, Chaim Saiman, and Ken Starr.
Punishment theory is a recurring topic here on MoJ, and Princeton's Adam Kolber has posted an interesting paper that might prompt more conversation: The Subjective Experience of Punishment. (HT: Solum) Here's the abstract:
Suppose two people commit the same crime and are sentenced to equal terms in the same prison facility. I argue that they have identical punishments in name only. One may experience incarceration as challenging but tolerable while the other is thoroughly tormented by it. Our sentencing policies seek to equalize the duration of their incarceration, yet largely ignore the differences in their experiences of isolation, stigma, and confinement. In this article, I argue that, according to our prevailing theories of punishment, the subjective experience of punishment matters. There is, therefore, a disconnect between our punishment practices and our best attempts to justify those practices.
There are three possible responses. First, we could try to modify or expand our theories to avoid the obligation to calibrate punishment. I show why this approach is unlikely to succeed. Second, we could conclude that, even though we ought to calibrate our punishments, doing so would be too costly or difficult to administer. This response is too hasty. In civil litigation, we do make subjective assessments of damages. Advances in neuroscience may someday make these assessments more accurate and less expensive. Even if we cannot individually calibrate punishments, we can surely enact sentencing policies that are more subjectively-sensitive than the policies we have now. We are left, then, with only the third response: to recognize that subjective experience matters in assessments of punishment severity and to take at least modest steps toward calibrating punishment, either through individual measurement or, more feasibly, by enacting punishment policies that are subjectively sensitive.
I have no idea how this would work, but it raises a good question: should a Catholic legal theory of punishment focus more on the defendant's experience of retributive judgment or on society's legitimate expectations of retributive judgment? Is the measure of "justice" viewed primarily through the defendant's perspective or through society's? Or both?
Tonight is the Minnesota caucus, and my attraction to the candidacy of Barack Obama has encountered a couple of stumbling blocks. First is the fact that George Clooney and a slew of Hollywood types have seen fit to endorse him, which must give one pause. Second, more seriously, Obama was outspoken in opposing the Born Alive Infant Protection Act in the Illinois Senate, which is probably old news for many MoJers. The same measure passed the United States Senate by a vote of 98-0. Not a promising vehicle for pro-life progressivism, to say the least.
In the recent Carnegie Foundation report, Educating Lawyers: Preparation for the Practice of Law, one quote in particular jumped out at me from the section reporting on law schools' failure to engage students seriously in the process of moral formation. As reported on page 142, a student at a "very selective private law school" explained to the researchers, "Law schools create people who are smart without a purpose."
Joe Knippenberg offers an interesting (though overly pessimistic, in my view) critique of Barack Obama's views on religion. An excerpt:
The deficit to which [Obama] refers is an "empathy deficit," the apparent incapacity of some to put themselves in the shoes of others. But addressing that deficit would seem to be the precondition, not the effect, of achieving "the great need of the hour." How can there be unity without empathy?
But perhaps Obama has something else in mind. In his view, some are already empathetic and hence capable of unity. They already feel for the needy and are appropriately outraged at, say, the injustice of executive salaries. The problem is to bring others along, which can be done by personal example and stirring speeches—the classic means of prophetic witness—but also by government coercion, if necessary. Stated another way, Obama’s view of the role of the church elides the difference between religion and politics. His religion is emphatically a political religion, calling us not only to charitable action in civil society, but to political activism, justifying not only prophetic witness but also governmental coercion.
