Tuesday, February 24, 2015
I'm happy to report that the Virginia House of Delegates a few hours ago voted down a proposed death penalty drug secrecy bill (SB 1393). I posted on MOJ a couple of weeks ago in opposition to this bill, and subsequently co-authored an op-ed with my colleague Corinna Lain that built on the MOJ post. I then testified before a House of Delegates subcommittee and committee. All of this seemed to be of little effect (as the subcommittee and committee vote counts show). But the tide somehow turned, and at least some of this must be due to persistent lobbying by the Virginia Catholic Conference, the Virginia ACLU, and Virginians for Alternatives to the Death Penalty, whom Corinna and I had been working with, as well as opposition by the Virginia Press Association and other open-government advocates. It is impossible to know what would have happened without any push from all these groups. And it is nice to think that a bill so evidently flawed would have collapsed of its own weight when delegates were free to vote their conscience without regard to party discipline (as they were). But it is gratifying to see the outcome one has been pushing for reflected in the final vote, especially when the outcome comes as a surprise. (To show how surprising the outcome is, I've included below the draft post that I wrote this morning but was unable to finish before other matters demanded my attention. It seems my draft observations about the distorting effects of death-penalty politics were not across-the-board accurate. Happy to be proven wrong.)
The New Atlantis (which I really enjoy) has a review up, by Prof. Gilbert Meilaender, of James Mumford's new book, Ethics at the Beginning of Life, which the reviewer calls "a work of serious philosophical argument, well worth our taking seriously." Check it out!
Sunday, February 22, 2015
Larry Solum has posted his paper, "Virtue as the End of Law: An Aretaic Theory of Legislation." Here is the abstract:
This paper sketches an aretaic theory of legislation. Such a theory posits the flourishing of humans and their communities as the end or telos of law. The paper argues for a Neo-Aristotelian conception of human flourishing as a life of social and rational activities that express the human excellences or virtues. Because a flourishing life requires the acquisition, maintenance, and expression of the virtues, their promotion is the characteristic goal of legislation. The law can promote the virtues in a variety of ways, including: (1) by fostering peace and prosperity, (2) by encouraging stable and nurturing families, and (3) by creating opportunities for the meaningful work and play. Taking virtue as the end of law does not entail that legislation must require virtuous action and prohibit behavior that expresses human defects or vices. Instead, the law might pursue indirect strategies that encourage (but do not require) virtue and discourage (but do not prohibit) vice.
As, well, Larry Solum would say . . . highly recommended!
Will Saletan writes, here ("Judgment Day"), about the weird criticisms being directed at Archbishops Cordileone in San Francisco, having to do with his efforts to protect Catholic institutions' ability to hire for mission. I agree with Saletan that these criticisms are, well, weird. But . . . expect a lot more of this. The logic of congruence is attractive to many and the "worms in the entrails" problem persists.
Friday, February 20, 2015
If one were asked to guess who or what in recent history has placed "a mortgage on the Church," one might be expected to answer: the child-raping priests, the chancery staffs that turned a blind eye to raping priests, the bishops who oversaw (sic) such chanceries and thus facilitated such abuse, etc. Well, one would be wrong, however. According to Pope Francis, it is the ordaining of traditionalists to the ministerial priesthood that places "a mortgage on the Church." Who knew?! The indictment by the Pope is here.
Pope Benedict's humble successor Francis also indicts as "mistaken" those who in undoubted "good faith" pursue a "reform of the reform." Readers will no doubt recall that a signal accomplishment of the too-short pontificate of Benedict XVI was a clarification of the concept of the reform of the reform and a resolve to implement one. I had my doubts at the time that a reform of the reform was sufficient for what was ailing the Church, and history has vindicated my doubt, alas. A reform of the reform that can be swept away, indeed ridiculed, as "mistaken" even before its tenth birthday offers about as much ecclesial medicine as a so-called Happy Meal offers nutritional value.
I leave aside for now consideration of Francis's words, in the same address to the Roman clergy, on the Ars Celebrandi. Those words of the Pope would need to be squared his own practice of starting to glance at his watch when liturgies last longer than, say, forty-five minutes, a task up to which I do not feel on the First Friday of this Lent.
Thursday, February 19, 2015
As I have written elsewhere, I favor comprehensive immigration reform, including some form of amnesty for many of the 11-12 million people currently residing in the United States without authorization. But, a formal repreive - even a temporary one - for those residing here illegally must, under our Constitution, come via legislative action not executive fiat. Last November, frustrated by congressional impasse, President Obama directed Homeland Security to give a formal 3 year repreive (called DAPA) to 4 to 5 million persons living in the United States without authorization. It is my assessment that this action and subsequent action by the Secretary of Homeland Security amounted to unconstitutional legislating by the Executive (I may elaborate in a later post).
26 states sued to enjoin the enforcement of DAPA, and this past Monday a federal judge granted a preliminary injunction halting the implementation of DAPA. In a circumspect opinion, the judge ruled that Homeland Security failed to comply with the notice and comment requirements of the Adminstrative Procedures Act. The court very properly declined to address the constitutional separation of powers issues at the preliminary injunction stage because "[j]udging the constitutionality of action taken by a coequal branch is a 'grave' and 'delicate duty' that the federal judiciary is called on to perform. ... if there is a non-constitutional ground upon which to adjudge the case, 'it is a well-established principle governing the prudent exercise of this Court's jurisdiction that normally the Court will not decide a constitutional question.'"
Based upon its conclusion (rightly I think) that the administration engaged in substantive rulemaking rather than prosecutorial discretion, I have little doubt that this court will find a separation of powers violation if it reaches the constitutional issue, but I applaud the judge's efforts to avoid the constitutional issue.
Dear Governor Brownback, Speaker of the House Merrick, and Senate President Wagle:
I am writing to urge you to support repeal of the death penalty in Kansas. Although I do not regard capital punishment to be on a moral par with the deliberate killing of innocent persons—including killing unborn babies by abortion and killing elderly or handicapped persons in euthanasia—I believe that the abolition of killing as a punishment will promote a culture of life.
Although I believe that legitimate moral criticisms of the death penalty can be made even apart from religious arguments and teachings, my views on the subject are primarily informed by the moral teaching of the Catholic Church. An important development in Catholic understanding of the death penalty came with Pope John Paul II’s encyclical Evangelium Vitae (The Gospel of Life). The pope wrote that the state “ought not to go to the extreme of executing the offender except in cases of absolute necessity: in other words, when it would not be possible otherwise to defend society. Today however, as a result of steady improvements in the organization of the penal system, such cases are very rare, if not practically non-existent” (56). John Paul II reiterated this point during his visit to the United States in 1999, when he called on Christians to be “unconditionally pro-life” and work to end the death penalty.
The Catechism of the Catholic Church reflects this teaching (2267) and Pope Benedict XVI, Pope Francis, and the United States Conference of Catholic Bishops all have affirmed it. In short, the Catholic Church now firmly teaches that, in modern society, the state should abandon the death penalty and instead opt for nonlethal means to protect society, such as life imprisonment.
I am aware that many liberals object to introducing religious teachings into debates about issues of public policy. Some even regard it as illegitimate for legislators, executives, and other public officials to act, even in part, on the basis of religious convictions. They will presumably object to the appeal I am making to you. Being persons of principle, I expect that they will regard my invocation of Catholic teaching as out of bounds, even if they share my opposition to the death penalty. (Indeed, if they do not, they will expose themselves as hypocrites.) But I urge you to disregard their objections for the same reasons you should disregard objections to the invocation of religious teaching in opposition to abortion, embryo-destructive biomedical research, assisted suicide, and euthanasia.
It is my understanding that Kansas is considering legislation to forbid certain abortions or abortion procedures, such as those that dismember children in the womb late in gestation. I think it would be salutary if in 2015 Kansas would achieve this highly commendable goal while also replacing the death penalty with the punishment of life in prison for heinous murders. Together, these steps would place Kansas in the vanguard of building a culture of life.
McCormick Professor of Jurisprudence
February 19, 2015 | Permalink
Wednesday, February 18, 2015
Over at dotCommonweal ("Don't Call us Libertarians!"), Matt Boudway responds to this piece and returns to an issue / debate/ question / distraction that I've tried to address a number of times here at MOJ, namely, the asserted tension between "libertarianism" and Catholic Social Tradition.
I continue to agree entirely with the claim that Catholicism proposes a moral anthropology that is importantly and significantly different from the vision proposed by some writers, thinkers, and politicians who embrace or reasonably deserve the label "libertarian." (Robby George once called libertarianism a "heresy" and, given the target, I think he was right.) At the same time, I think that, for too many Catholics, "libertarian" is becoming little more than an epithet that one attaches to particular policy proposals or stances one does not support, whether or not those proposals or stances actually depend on or reflect "libertarian" premises. As I argued in more detail here, and here, and here, "laissez-faire libertarianism" is, in my view, usually, a straw man. A bit:
I have no interest in (my understanding of) the "objectivism" of Ayn Rand. It seems to me that the best and most morally attractive legal-and-economic regimes will be democratic-capitalist and constitutionalist with appropriate and effective social-welfare-protecting programs and constraints. But, it is not “Randian” to think that the basic “liberal” ("libertarian"?) insight -- i.e., governments should be limited by law and non-state ordering and associations should be protected and respected by law remains, well, insightful.
I agree . . . that conversations about public policy should be couched in terms that treat ideas like "competition" and "consumer choice" as means and mechanisms. But, it's worth remembering that they are, often, very effective means and mechanisms. To the extent they are, let’s use them! Sometimes, “libertarian” (or "free market" or "non-state" or "private ordering") policies are the better ones, not so much because of imperatives connected with deep anthropological premises or because of an idolatrous attachment to autonomy, but because . . . they [again, sometimes] work better (at bringing about human flourishing and common good, properly understood).
Matt writes, "There are those who believe that markets are essentially self-correcting, that the state should not concern itself with distributive justice, and that worries about inequality are reducible to envy. But Pope Francis isn't among them, and neither were his predecessors." I certainly agree with the second sentence, but I am still pretty confident that the number of "conservative Catholics" who fit the description in the first sentence is very small. The questions that tends to divide Catholics-who-all-things-considered-vote-Republican and Catholics-who-all-things-considered-vote-Democratic are, it seems to me, "how much?", "on balance, what should we do?", and "who what extent?" questions.
As this piece in the Washington Post notes, there is a lively conversation going on -- in both the physical and virtual worlds -- about the University of Notre Dame's core-curriculum review and about the possibility that the current "two courses in Theology and Philosophy" requirement could be watered down or scrapped. (Although I did not attend Notre Dame, and do not teach undergraduates -- though I'd love to! -- I believe strongly that the requirement should be enriched and deepened . . . and retained.) My friend and colleague Prof. Cyril O'Regan's presentation on the matter -- "The Catholic University, Theology, and the Curriculum" -- is outstanding, and available here. Here's a bit:
I judge the stakes regarding the current review of Curriculum to be extraordinarily high for the definition and the future of the university. We have not quite reached that pitch of apocalyptic crisis where it is appropriate to recur to the throw-down from Lord of the Rings in which Gandalf stands against the unspeakable Balrog in the mines of Moria and, facing it, says with Moses-like staff in hand: Thou shalt not pass! The jig is far from up for our beloved Notre Dame. But let there be no mistake about it, I do believe there is something seriously wrong with the emerging ethos of Notre Dame, which in my view is very much symptomed in what I regard as run-away enthusiasm for irresponsible invention evinced in the core curriculum review. This is a moment for our common reflection of what and who we are and what and who we are becoming, and possibly gather those forces whereby in a real sense we become who we are.
Read the whole thing!