Friday, November 25, 2011

Philosophy, the Handmaid of Judicial Review

That's the title of my latest entry over at The Catholic Thing. Here's how it begins:
In his most recent column here at The Catholic Thing, my friend Hadley Arkes raises the question as to why the federal courts, and the Supreme Court in particular, could not extend the protections of the Fourteenth Amendment to unborn human persons by employing the same reasoning these courts have utilized elsewhere.

What Hadley is suggesting in his query should be uncontroversial:  the courts must apply the principles of the Constitution to new realities that share the properties of those realities to which the principles have always applied, even though these new realities were not predicted or anticipated by the framers.

In order to make this point, we need not look further than a 1970 federal district court case, Steinberg v. Brown (1970). This case was cited by the Supreme Court in Roe v. Wade (1973) as one of the many cases that had upheld anti-abortion statutes. What the Supreme Court failed to mention is that the Steinberg court upheld Ohio’s statute based on reasoning that the Supreme Court claimed the defendant in Roe, the state of Texas, did not provide, namely, evidence that a federal court had found an unborn human being to be a person under the Fourteenth Amendment.

>>>continue reading

Thursday, November 17, 2011

Religion, Politics, and the Public Square

Over the years I've published several academic articles dealing with the separation of church and state and the status of theology as knowledge. I bring this to your attention because of the increasing attention on the religious beliefs of those running for the U. S. Presidency. Here are some of my articles with links:









Tuesday, November 15, 2011

Progressive Politics and Diminishing Religious Liberty

Over at Public Discourse this morning, attorneys Jane Robbins and Emmett McGroarty have authored an eye-opening piece, "Mandating Our Religious Freedom." Here's how it begins:
People of faith must reclaim their religious freedom, granted by the Creator and protected by the Constitution.

The Founders’ protection of religious freedom in the First Amendment was in keeping with their recognition of the supreme importance of the individual, who was created by God and subject to God’s natural law. The early twentieth-century Progressives largely rejected this view, as they concluded that man must not be limited by “arbitrary” rules such as those imposed by religion. Modern progressives have seized upon this viewpoint, especially in their attitudes toward sex. The State will teach children about sex, and it will do so by disconnecting it from its most important component—the spiritual. It does not matter that such teachings are, by nature, within the rights of parents.

Progressives have carried these attitudes to federal, state, and local governments, and the result has been an unprecedented assault on religious values and religious practice. Governmental authorities embrace the view that access to contraception (and abortion) is a fundamental right vital to sexual freedom. Similarly, homosexual conduct must be completely normalized and accepted. The law must prohibit even private preference for heterosexual norms, and if religion teaches such a preference, religion must yield. These attitudes must be taught to children in the public schools in order to affirm, in the state’s view, the full self-realization of every person—and as shown below, parents who object to the assault on their right to bring up their children according to their religious values have discovered that the courts will not protect their rights in this regard.

>>>continue reading

Sunday, November 13, 2011

Is There a Right to Clone?

I don't think so. In a 2002 article in the Nevada Law Journal, "Cloning and Reproductive Liberty," I make the argument that one cannot get a right to clone from the Supreme Court's reproductive rights jurisprudence. You can read the article here.


Crime and Punishment at Penn State

That is the title of the piece published by my fellow contributor at The Catholic Thing, Brad Miner. Here's how it begins:
Author’s Note: The crimes described below are stated frankly. Those who do not wish to read details about sexual assaults are cautioned.

Former Penn State football coach Joe Paterno is Roman Catholic and a regular churchgoer, not a nominal believer. Surely, he paid attention to the scandals that have roiled the Church in recent years. And you might suppose he learned something about how to respond to allegations about the sexual assault of children. But apparently not.

The lesson: sexual predators cease their criminal abuse only when caught, tried, convicted, and imprisoned. This is the single understanding to be applied in all places at all times and, by definition, in every profession. And against every pedophile.

>>>continue reading

Friday, November 11, 2011

Rod Dreher is back

After a blogging hiatus of about a year, Rod Dreher is back, blogging over at The American Conservative. Even if Rod were not my friend, I would still highly recommend his blog. He is one of the more thoughtful writers online. You can go to his blog here.



Thursday, November 10, 2011

The Question Behind Our Political Divisions

That is the title of my most recent entry over at The Catholic Thing. Here's how it begins:




The political regime of the United States of America is one founded on three core philosophical ideas:  natural rights, consent of the governed, and the rule of law. The American Founders put in place a structure – a federal constitutional government of divided powers consisting of states with their own republican governments – in order to ensure that these core philosophical ideas stood the best chance of surviving the tumult of human depravity. Thus, the Founders’ government was a limited government, but it was not a libertine one. It offered what some call a regime of ordered liberty. That is, one in which the preservation and development of certain institutions and ways of life – already present in civil society – could be allowed to flourish for the sake of the common good.

The Declaration of Independence provides a philosophical snapshot of the grounds by which the infrastructure of this government was fashioned:  “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” That is, human beings are rights bearers by nature, and these rights are given to them by God. And because the human being, in the words of Justice McLean, “bears the impress of his Maker,” we are in fact creatures of equal dignity and immeasurable worth (even when our government does not live up to this truth).

>>>continue reading

(picture of U. S. Supreme Court Justice John McLean, who served on the Court from 1830 until 1861)

Wednesday, November 9, 2011

Duke's Coach K on uncompromising morality

In an article about the Penn State case, ESPN reports:
Paterno's requirement that his players not just achieve success but adhere to a moral code, that they win with honor, transcended his sport. Mike Krzyzewski, the Duke basketball coach, said in June for an ESPN special on Paterno: "Values are never compromised. That's the bottom line."

However, when a very courageous assistant coach at Baylor, Abar Rouse, had surreptitiously audio-taped his superior, disgraced head basketball coach Dave Bliss, telling Rouse of his plan to falsely depict a murdered Baylor player as a drug dealer so that  Bliss' under-the-table payments to the player were not exposed to NCAA scrutiny, this is what ESPN reported:
Many coaches, including Hall of Famers Jim Boeheim and Mike Krzyzewski, have said that Rouse had crossed the line. "If one of my assistants would tape every one of my conversations with me not knowing it, there's no way he would be on my staff," Krzyzewski told "Outside the Lines" in 2003.

If a sainted coach like Krzyzewski can see only disloyalty, and not heroism, in Rouse's catching and turning in Dave Bliss for defaming a murder victim for whom Bliss had special care as the young man's head coach, is the harboring of a child rapist by Penn State University not so unimaginable? "Values are never compromised"? What a pile of horsesh*t.

Monday, November 7, 2011

Dignity Never Been Photographed: Scientific Materialism, Enlightenment Liberalism, and Steven Pinker

That is the title of an article I published in the Summer 2010 issue of Ethics & Medicine: An International Journal of Bioethics (vol. 26.2).  (The title, if you have not noticed yet, is from a line in the Bob Dylan song, "Dignity"). Here's how the article begins (endnotes omitted):

In March 2008, the President’s Council on Bioethics published a volume entitled, Human Dignity and Bioethics.  It consists of essays penned by council members as well as other scholars and practitioners invited to contribute. As one would guess, the idea of human dignity and what it means for bioethics, both in theory and in practice, is the theme that dominates each of the works contributed to this impressive volume. But for those who have been following or participating in the interdisciplinary and multidisciplinary world of secular bioethics during the past fifteen or twenty years, the insertion of the idea of “human dignity,” or even the word “dignity,” as the anthropological foundation of bioethics is highly unusual.  Much of the cutting edge literature in bioethics, with few exceptions, tends to employ the language of modern political theory and contemporary analytic political philosophy and jurisprudence. So, for example, one finds in these cutting-edge works discussions about the meaning and implementation of the principles of autonomy, justice, nonmaleficence, and beneficence, as well as calls for the application of these principles to what constitutes physician neutrality, informed consent, and patients’ rights.  This project often goes by the name principlism. There is, of course, much that this project has contributed to the study and practice of bioethics.  For each principle and its application has a long and noble pedigree about which many of us hold a variety of opinions. But what distinguishes principlism from the concept of “human dignity,” and what makes this central concern of the council’s volume so astounding, is that advocates of principlism typically intend for it to be a means by which a physician, ethics committee, nurse practitioner, general counsel, etc., need not delve into the metaphysical question for which “human dignity” is offered as a partial answer, namely, “Who and what are we, and can we know it?

To put it another way, if bioethics commits itself to the idea that “human dignity” is essential to its practice, as the President’s Council suggests, it follows that bioethics must embrace a philosophy of the human person, a philosophical anthropology, if you will, that can provide substantive content to the notion of “human dignity.” But such a suggestion seems to run counter to two ideas that are dominant in the secular academy: (1) Enlightenment Liberalism, and (2) Scientific Materialism.

Enlightenment Liberalism is, roughly, the view that a state that aspires to justice and fairness ought not to embrace one view of the human person as the correct view because to do so would be to violate the principles essential to liberal democracy. This is why the principles central to principlism, such as autonomy and justice, are almost all procedural in their application. That is, when they are applied and practiced correctly, they commit the relevant medical personal and institution to as minimal an understanding of the human person and her good as possible. Now, as I point out below, I think that this is actually false. In fact, secular bioethics does commit its practitioners to a substantive understanding of the human person and the human good, one that is as contested and controversial as the so-called “religious” views for which principlism is often thought of as a neutral arbiter. What I am suggesting here, however, is that this is not how its supporters present, or in some cases understand, their position.

The second idea, Scientific Materialism, is, roughly, the view that science is the best or only way of knowing, and that science is committed to methodological naturalism (that science must proceed under the assumption that non-natural entities cannot be items of knowledge that may count against the deliverances of the hard sciences).  Therefore, philosophies of the human person that affirm non-material properties like “human dignity” are not items of real knowledge.  Thus, such philosophies of the human person, though they may be privately embraced and practiced by individual citizens in accordance with their own religious sensibilities or believed on the basis of utility, none of these philosophical anthropologies may ever serve as the basis on which a society may regulate research and practices of bioethical controversy, such as embryonic stem-cell research, physician-assisted suicide, abortion, or reproductive technologies.

As one would suspect, given these definitions, advocates of Enlightenment Liberalism and Scientific Materialism offer them as neutral and uncontested concepts that provide a fair, impartial, and scientifically respectable foundation for the practice of medical ethics in a pluralistic society of competing worldviews. Despite their intuitive appeal to many in the academic and professional cultures in which a secular bioethics is dominant, I want to argue that these views are not neutral and uncontested concepts. Rather, they support an account of the common good and the human person that answers precisely the same questions that the so-called contested worldviews, including so-called religious perspectives, attempt to answer.  In order to make my case, I employ as my point of departure several comments that appeared in a 2008 article published in The New Republic, “The Stupidity of Dignity,” authored by Harvard University psychology professor, Steven Pinker.

You can download the entire article on my website here.

Evangelical and Catholic

Next week on the dates of November 16-18, 2011 I will be attending the 63rd annual meeting of the Evangelical Theological Society (ETS) in San Francisco. I
will be there delivering a paper as a member of the Evangelical Philosophical Society, whose sessions are part of the ETS program. (For those who may be attending, I will be delivering my paper, "Justificatory Liberalism and Same-Sex Marriage," on Thursday November 17 at 9:20 am, in the same session as William Lane Craig and Michael Licona are delivering their papers). I have attended two ETS meeting since returning to the Catholic Church (2007, 2010). It is such a joy to visit with my Evangelical friends, with whom I am still very close.  I continue to learn so much from them.

Saturday, November 5, 2011

Can the Personhood of the Embryo Be Rejected Based on Supposed Bad Consequences of Believing In It?

Karen, in the combox in a previous post, raises this concern:
Persons get to sue.  If this law passes [i.e., the Mississippi personhood amendment], miscarried embryos can sue their mothers for negligence that resulted in the miscarriage. Examples of things that cause early miscarriage are bicycling, horseback riding, breastfeeding, drinking coffee, tea, and alcohol.  Insurance companies face astounding potential liability for covering restaurants or holiday camps that allow women of childbearing age to engage in those activities.  Given what 'prolifers' think about women who have the gall to exist in public, I find it extremely easy to imagine you suing the Mississippi restaurant association for permitting women to drink beer or eat fat, causing an untold number of embryonic deaths.  Suddenly insurance companies refuse to cover any entity that allows women to do anything that could cause a miscarriage, including things like work at most any factory job or health care position.

Please don't insult my intelligence by saying this could never ever happen because you all LOOOVVEEE women so much.  Under this law embryos are persons; persons can sue in civil court; one of you could file suit on behalf of all embryos who are damaged by the fact that their mothers had the unmitigated gall to leave the house.

For the record, I have no idea what I think about the Mississippi personhood amendment, since I have not kept up with the debate about it. My initial and untutored reaction, however, is that given the composition of the U. S. Supreme Court, these sorts of amendments are a bad idea. For they will merely allow the Court to once again reinforce the right to abortion. Nevertheless, what interests me is Karen's argument. As luck would have it, I address two similar arguments in my book, Defending Life: A Moral and Legal Case Against Abortion Choice (Cambridge University Press, 2007), 170-171. Here's what I write (citations omitted):



Friday, November 4, 2011

Robert VerBruggen on Science and Personhood: A Response

Over at National Review's "The Corner," Robert VerBruggen writes:
What’s not clear to me, however, is why “distinct DNA” should be the criterion by which we judge personhood for moral and legal purposes. As Reason’s Ronald Bailey has pointed out, 60 to 80 percent of human embryos — post-conception, with distinct DNA — are naturally destroyed by the woman’s body. Are we to see this as a large-scale massacre of human beings, develop drugs to prevent it from happening, and require all women who have unprotected sex to take them? Certainly, we would be willing to take measures like this if post-birth infants were dying in comparable numbers.

First, VerBruggen is not correct in saying that the prolife position depends exclusively on the "distinct DNA" of an embryo in order to affirm its personhood. Rather, the prolifer believes that the embryo is a person because of the sort of thing that it is, a rational animal, an individual human substance whose parts are intrinsically ordered to work in concert for the good of the whole. It is an individual being who owns properties and parts and is not a property or part of something else, like its foot or its weight. The fact that the embryo has its own DNA distinct from either parent's DNA is not what makes it a person.  After all, my hand's DNA is distinct from my wife's DNA, but that does not make my hand a person. It is, to be sure, a part of a person, but it is not an individual human substance. Rather, it is a part of a rational animal whose existence began at the moment of its conception over 51 years ago. (For more on the "substance view of persons," see my chapter “The Human Being, a Person of Substance: A Response to Dean Stretton,” in  Persons, Moral Worth, and Embryos: A Critical Analysis of Pro-Choice Arguments, ed.  Stephen Napier [Dordrecht: Springer, 2011], 67-83).

I understand that VerBruggen was quoting fellow NRO blogger, David French, who writes: "Indeed, scientists are virtually unanimous in declaring that the result of conception is a human child with a distinct DNA different from his or her parents. This unanimity is the essence of `overwhelming consensus.'" Notice, however, that David is not saying that "distinct DNA" is a sufficient condition for personhood. Rather, he is arguing that a human child already exists and that it happens to have its own "distinct DNA" that differs from its parents' DNA. It would be like saying that "Fred is an individual human child, since he has his own hands and feet that are not the hands and feet of his parents." But having hands or feet are not sufficient for human personhood, since chimps have hands and feet and some human beings, like the thalidomide babies, lack them.

Wednesday, November 2, 2011

Catholics Come Home

[youtube]http://www.youtube.com/watch?v=Vs6qZd_xP1w[/youtube]

Every time I watch this video I get choked up. You can find out more about Catholics Come Home here. It is a wonderful website.

Tuesday, November 1, 2011

Episcopal Diocese of Atlanta will vote on reversing condemnation of Pelagius

(HT: Rod Dreher). Over 1500 years in the making, Pelagius is making an ecclesiastical comeback. The story begins:
The [Episcopal] Diocese of Atlanta has been asked to rehabilitate Pelagius.

Delegates to the diocesan convention will be asked to reverse the condemnation of the Council of Carthage upon Pelagius, and to explore whether the Fifth century heretic may inform the theology of the Episcopal Church.

Resolution R11-7 before the convention states in part:

“Whereas the historical record of Pelagius’s contribution to our theological tradition is shrouded in the political ambition of his theological antagonists who sought to discredit what they felt was a threat to the empire, and their ecclesiastical dominance, and whereas an understanding of his life and writings might bring more to bear on his good standing in our tradition;”

You can read the whole thing here. (But what of his half-brother, semi-Pelagius?) Perhaps if Pelagius wins the November 4 vote, he can do a remake of the LL Cool J video:

[youtube]http://www.youtube.com/watch?v=vimZj8HW0Kg[/youtube]