Tuesday, November 09, 2010

Eulogos and the Constitution of the United States of America

A converted Roman Catholic blogger who goes by the name of Eulogos, but has openly used her legal name as well, recently posted in a discussion at Red Cardigan that "When I became a Catholic I said 'I Susan Peterson, enlightened by divine grace, and touching with my hand these Holy Gospels, profess the faith which the Catholic, Apostolic, and Roman Church teaches. I believe that Church to be the one true Church which Jesus Christ established on earth, to which I adhere with all my heart'."

She went on to profess belief in the infallibility of the Pope, seven sacraments, the Apostles Creed, and ended her profession of faith with "And anything else which She (The Catholic Church) defines and declares I do believe, and I renounce every heresy and schism which She condemns."

I don't believe a word of it. Where I live in space and time, that confers on me no civil disability. Ms. Peterson, I assume, sincerely believes every word, which confers no civil disability on her. We can both vote, run for office, own property, we pay the same taxes and have the same access to government services. We can each live in any neighborhood each of us can afford. There the matter might rest, were it not for the evangelical impulse which animates the Christian faith, and the claim to supremacy over civil authority which is often generated by belief in the infallibility of the Pope.

One romishgraffiti adds a citation from that church's current Catechism:

2089. Incredulity is the neglect of revealed truth or the willful refusal to assent to it. Heresy is the obstinate post-baptismal denial of some truth which must be believed with divine and catholic faith, or it is likewise an obstinate doubt concerning the same; apostasy is the total repudiation of the Christian faith; schism is the refusal of submission to the Roman Pontiff or of communion with the members of the Church subject to him.

I cheerfully and openly embrace schism and heresy by those definitions. (From what I've heard, listening to those who have studied Greek, "heresy" originally meant party or faction, to the entire Vatican edifice is, ipso facto, heresy. Accepted doctrine is merely the heresy in power at the moment.) I cannot plead nolo contendere to apostasy, although a Roman Catholic definition of "the Christian faith" would undoubtedly condemn me of that as well. I plead not guilty to incredulity only by clinging to my own understanding of what is, and is not, revealed truth. Again, a proper Roman definition could no doubt convict me.

If the canon romishgraffiti cites applies only to those who have, like Susan Peterson, freely and voluntarily confessed the Roman Catholic faith, then that canon is none of my business, and I need think no more about it. If it is asserted that this canon applies to me, then it is my privilege to abjure, renounce, and condemn it.

There has always been a conflict between democratic governance, particularly in the absence of an Established Church, and assertions of Absolute Truth by a religious faith. This conflict is by no means limited to the Roman Catholic Church, nor is that church itself free from charges of heresy and schism.

A most amusing contribution to Rod Dreher's discussion of "Is the Protestant Reformation ending?" was an observation that "The Protestant Reformation will never end until the Roman Catholic Church returns to Holy Orthodoxy, because the Pope is the first Protestant." How so? The Bishop of Rome put his individual pronouncements above the collegial leadership of the patriarchs, who recognized his office as first among equals, but not as the ultimate or sole source of authority. Historically, theologically, and doctrinally, is is more than arguable that the Orthodox church is "the one true Church established by Christ and his Apostles," if indeed any church is, and the Roman church a late-breaking offshoot.

In more recent times, the distant offspring of the Protestant Reformation have rebelled against the separation between church and state, that was inspired by their own forefathers (and mothers), demanding immediate political manifestation of Paul's promise that "every knee shall bow, and every tongue confess, that Jesus Christ is Lord."

Protestants should know better. When Alexis de Toqueville visited the United States during the 1830s, he noted the profusion of churches, and active participation they inspired by a large part of the population, compared to Europe. Unanimously, any pastor of any church he asked told him the reason was the separation of church and state. The church thrived when freed from what James Madison called "the profane hand of the civil magistrate."

Today, the broadly secular nature of European life and culture are widely bemoaned by the Pope and by evangelical American Protestants alike. The emptiness of churches in Europe can be traced directly to the long history of officially Established churches dependent upon the subsidy of whatever government might be in power. The continued vitality of churches in the United States is the direct result of having no such unholy bonds.

Roman Catholics also benefited, as the Baltimore Catechism used to sternly remind each new generation. There were a few colonists practicing the Roman Catholic faith at the time of the American Revolution, many of whom became active patriots. Although the colonies had a history of brutal persecution of Catholics, both inherited from English politics and inspired by hatred of the rampant Spanish persecution of Protestants and Jews, Catholic patriots were fully accepted into the common cause.

Those early, post-colonial, Catholics adhered to the rituals and theology of their church, but Rome was far away across the broad Atlantic Ocean. Communication took weeks if not months. The Curia seldom paid much attention to affairs in the former British colonies. Besides, there were few enough of them.

There was always an undercurrent in the Roman Church of "OK, since the place is mostly Protestant, freedom of religion is best for us, but when we get a chance, we will restore the supremacy of Our Church." There was always an undercurrent of fear among American Protestants that, indeed, Catholic immigration would lead to the destruction of our secular republic.

It cost Al Smith the presidency in 1928. It was an issue John F. Kennedy laid to rest by affirming that if the electorate offered him the honor of taking an oath to "preserve, protect and defend the Constitution of the United States," with his hand on the Bible, it would be an offense against God to break that oath. Sincere Roman supremacists bitterly denounced him for that concession.

Christians who, similar to even the most Orthodox of Jews, are willing to wait patiently for God to establish His Kingdom as he sees fit, in his own good time, have no need to challenge the separation of church and state. One can join with Abraham Lincoln in asserting that "the judgements of the Lord are true and righteous altogether," but acknowledge that "Men are not flattered by being shown that there has been a difference of purpose between the Almighty and them."

Those who preach religious supremacy, whether Orthodox, Roman, Anglican, Lutheran, Calvinist, Jewish, Muslim or Pentecostal, must honestly come to terms with what they really mean to offer their neighbors: the hand of friendship, silent contempt, or the sword. American law fully recognizes the autonomy of any church in governing its own internal affairs, in matters of faith and doctrine, even of church property. Those who claim the unwilling obedience of noncommunicants are enemies of freedom, and of their noncommunicant fellow citizens.

If the doctrine of any church is ambiguous as to the jurisdiction claimed, it is the duty of adherents to clarify exactly what they mean, and say so honestly to all the world. The world will, of course, respond in kind: by their fruits do we know them.

Friday, June 11, 2010

California Proposition 8: Not a Federal Question

I'm not sure whether to call on the ghost of Hugo Black, or look to one of Antonin Scalia's better days, when I read the New York Times's pathetic editorial on the lawsuit in federal district court challenging California's Proposition 8. I use pathetic in the most clinical sense of the word: the editorial is all pathos, without a shred of rigorous constitutional analysis. It manifests the common American malady of reducing "constitutional rights" to a mere wish list.

The Times's basic premise is "The testimony made abundantly clear that excluding same-sex couples from marriage exacts a grievous toll on gay people and their families. Domestic partnerships are a woefully inadequate substitute." As far as constitutional law is concerned, the obvious question is "So what?"

Constitutional law is not about "grievous tolls" or the "adequacy" of a legislative remedy. Nor is it about "how does this make me feel?" Constitutional law is primarily about jurisdiction, delegating powers, and limiting powers. If a law is judicially found to violate the constitution, that should mean that the legislature has exceeded its duly constituted authority. "Every act of a delegated authority, contary to the tenor of the commission under which it is exercised, is void. No legislative act therefore contrary to the constitution can be valid" - Federalist Papers, No. 78.

The federal constitution does contain some restrictions on the exercise of state authority -- all of them ratified by three fourths or more of the state legislatures at the time the constitution itself, or an amendment, was ratified.

Article I, Section 10, bars state from entering into treaties, coining money, passing any bill of attainder or ex post facto law, levying duties on imports, keep troops or ships of war, or engaging in war. It says nothing about licensing marriage.

Article VI provides that the federal constitution, and all laws and treaties made under its authority, shall be the supreme law of the land. The federal government has been delegated no authority to legislate about marriage; that was left to the states.

Amendment XIII made a substantial change in constitutional law -- it prohibited slavery and involuntary servitude, except as a punishment for crime. Again, nothing about the definition of marriage.

Amendment XIV restrained states from making or enforcing any law which abridges the privileges and immunities of citizens of the United States, depriving any person of life, liberty or property without due process of law, or denying to any person the equal protection of the laws.

There is a huge difference between denying "equal protection of the laws" and "denying me what I want, when I want it, the way I want it." I would like to park my car on a city street without having to get a night permit, but since everyone in the city where I live has to get a night permit, I do also. Equal protection of the laws is something the state owes to each person - in many cases, each person similarly situated. Five year olds are denied the right to vote, but this has never been deemed to violate equal protection of the laws. ALL persons under eighteen are barred from voting.

Marriage has always been a relationship between a man and a woman. The proper constitutional question is, has any man, or any woman (who, added together, make up all persons) been denied the equal protection of the marriage laws? No. Any man, and any woman, are equally free to enter into marriage. Some men, and some women, don't wish to, but legally, they may. Further, some men, and some women, would like some other relationship, which they find more attractive, to be acknowledged by their neighbors, celebrated by their community, and licensed by their state. Well, that's possible, but its not a constitutional right. It is certainly a very different question than Virginia trying to discriminate about which men could marry which women. New York's Court of Appeals understood that better than the Supreme Courts of Massachusetts or California.

When my state voted on a "defense of marriage" amendment to the state constitution, I exercised my right to vote no. A majority of my fellow citizens voted yes. If I lived in California, I might have voted for Proposition 8, on the narrow grounds that the Supreme Court of that state had exceeded its authority under the state and federal constitutions -- there was no basis to rule as a matter of constitutional right that the state should amend its definition of marriage.

It appears that both sides of the Proposition 8 debate have degenerated into arguing potential or actual harms to gay couples, gay individuals, heterosexual marriage, public morality... none of which rise to the level of constitutional questions. Turning once again to Federalist Papers No. 78, "where the will of the legislature declared in its statutes, stands in opposition to that of the people declared in the constitution, the judges ought to be governed by the latter, rather than the former." On that basis, judicial review of California's Proposition 8 would result in summary judgement for the State of California; on no set of facts is there any legal foundation to rule in favor of the plaintiffs.

Monday, March 15, 2010

Science, Life and Choice: Value Judgments and Empirical Data in Political Debate

Originally, the debate about abortion in the United States had two poles, reflecting two concise statements of principle, one emphasizing self-determination of women, the other protection of life from the moment of conception. Each position had a certain integrity, based on mutually exclusive premises. In the political battle that has ensued, particularly since the decision of the United States Supreme Court in Roe v. Wade, 410 U.S. 113 (1973), each side has indulged in blatant caricature of the other. Those who call themselves “pro-choice” denounce their opponents as “right-wing ideologues who want to take away a woman's right to choose” while those who call themselves “pro-life” have announced a “great war” between themselves and a “culture of death.”

Both sides of this debate have sought to claim the high ground of “scientific truth” for themselves, vigorously advancing whatever empirics might lend some credibility to their own platform, while dismissively casting aspersions on any theories which seem inconvenient to their own ambitions toward political hegemony. One of the more meticulous voices on the pro-life side of the search for scientific validation has been Dr. Gerard Nadal, an accomplished microbiologist who candidly offers his writing as “science in the service of the pro-life movement.”

There is, of course, an inherent bias to any scientist offering his craft to either side of a political debate. On the other hand, any scientist with a sense of social responsibility should be concerned with how credible scientific inquiry impacts the world in which we all live. Further, the fact that a scientist has a moral point of view does not mean their conclusions are false – it is simply one factor to consider in evaluating their results. Dr. Nadal has presented very credible explanations of the biological mechanism which increases the risk of breast cancer for women who have had abortions or used oral contraceptives. He has not overtly denied that the same biological facts account for the high rate of breast cancer among women pursuing celibate religious vocations in his beloved Roman Catholic Church.

Fundamentally, the pro-life movement contends that from the moment a human zygote forms, a human being exists, which is entitled to full legal protection, the same rights that any person is legally entitled to at birth, at age five, at age twenty-five, or at age eighty-five. As a microbiologist, Dr. Nadal possesses a body of knowledge and a set of research skills which give him substantial authority to speak on this question, and put many relevant facts at his disposal. He has posted a number of excellent expositions on the human cell, in general, the process of meiosis and mitosis, in specific, and of course the formation of the zygote and the early stages of pregnancy. These are highly recommended:

Unfortunately, Dr. Nadal has been infected with a bit of hubris, which exceeds what any practitioner of science can claim with integrity or credibility. He has convinced himself that “The organismal identity of the early embryo IS A SCIENTIFIC FACT!!! Case Closed.” Accordingly, it has become impossible to have a conversation on the subject, with Dr. Nadal as a participant. In his more honest and introspective moments, he freely acknowledges that “Absent a Christian anthropology, it’s not hard to see where many of my peers do not consider the early embryo a human person. Without the eyes of faith guided by reason, all one sees is a clump of cells.” That is a genuine scientist, guided by a genuine faith, speaking to the world. But when seriously challenged, he denounces any differing viewpoint as tantamount to “a flat earth mentality,” and refuses to listen or speak to any differing insight. It amounts to scientific truth by fiat and pronouncement, rather than by consensus and proof.

His empirical claims are indeed beyond dispute:

  • The human zygote is a genetically unique cell with twenty-three complete chromosome pairs.
  • This zygote is genetically distinct from the pregnant woman whose womb it resides in.
  • This zygote, unlike the specialized cells of a human body, is epigenetically programmed to divide and reproduce in a manner which will, it not interrupted, result in a complete new human organism.

In his own words, “All somatic cells have 23 pairs of chromosomes, but the cell that is a human organism in its earliest stage of development is one whose epigenetic factors orient it intrinsically toward development into the mature form of the organism."

Up to that point, he is solidly grounded in scientific fact. However, it seems that Dr. Nadal has mistaken his value judgement as to the meaning of these facts, for a further undisputed scientific fact. It is nothing of the kind. There are many reasons a reasonable person, aware of the same scientific facts, might reach a different conclusion as to the scientific, moral, legal, social, status of the zygote, the blastocyst, the embryo, and at least some stages of subsequent fetal development.

The zygote's immediate physical content is no more substantial than a paramecium. It has no brain, no nervous system, no conscious awareness of its own existence. By natural process, it might well be flushed out of the womb, and die, or it might embed in the uterine wall, where for several months it will be total reliant on the bloodstream of the woman in which it resides. For those months, precisely because it is genetically distinct, it is a kind of parasite, albeit one which is often sought and warmly welcomed, which will in due course emerge as an independent life. While a human being can make its own conscious decisions, the zygote mindlessly follows a series of chemical programs. The programmed series of chemical and biological developments will RESULT IN a human being.

A human being is an organism, not a cell, or a cluster of cells. In Dr. Nadal's own words, an ORGANISM is “ the whole and complete animal, made up of all the organ systems functioning as a coordinated whole.” Until a fetus possesses all the organ systems of a human being, functioning as a coordinated whole, there is no human being present. Dr. Nadal gives an excellent Primer on the Hierarchy of the Human Body's Organizational Levels, covering cells, tissues, organs, organ systems and organism. It is perfectly good science. He knows what he is talking about. But all that science does not sustain as scientific fact the conclusion he is constantly working toward.

Finally, Dr. Nadal argues that “the organism is identifiable in terms of what kind of thing it is.” It is most certainly true that a human zygote, formed from a human sperm and a human ova in a human fallopian tube connecting a human ovary to a human uterus is a HUMAN zygote. It is not a giraffe zygote, an antelope zygote, a whale zygote, or a hamster zygote. However, just as a giraffe zygote has no neck to eat the leaves on a tall tree, just as a whale zygote cannot ingest hundreds of gallons of water to strain out the plankton, a human zygote is not yet a human organism. It is not a human being. It is not a person. It is a single cell with some unique chemical properties providing the blue print for a human being, a little bit like a self-extracting zip file.

Perhaps the saddest bit of pomposity Dr. Nadal stoops to, in an attempt to salvage as scientific fact what is in fact a perfectly legitimate value judgment, is the exclamation “I didn’t go through two master degrees and a Ph.D. to have nonscientists tell me that science gets it wrong because the nonscientist says so.” Our culture is in many respects oversaturated with “expert opinion.” That doesn't mean experts have no function; scientists do know facts the rest of us couldn't have found out on our own. Indeed, an astrophysicist has knowledge of which a field archaeologist may be totally ignorant. However, unless we are going to establish a scientific priesthood as the aristocracy of our culture and politics, a good scientist should be able to explain what he knows in sensible terms an informed nonspecialist can recognize and evaluate.

Cameron Todd Willingham was murdered by the State of Texas on the testimony of “experts” who deduced that he had deliberately set a fire that killed his three daughters. That “expertise” turned out to be a collection of fables, which were proven patently false when subjected to scientific tests. Our courts are full of “expert testimony” that befuddles juries more than it enlightens them. Dr. Nadal is much better than that. He knows a great deal of sound science in the field of microbiology. He has, on many occasions, presented sound science in a manner that a nonscientist can indeed evaluate and see merit in. But by the same token, when an informed nonspecialist in microbiology can see reason to question Dr. Nadal's conclusions, a scientist's responsibility is to either provide a better explanation, or consider carefully whether his conclusion is quite so scientifically conclusive as he had thought.

Oxford University professor J.R. Lucas, writing in 1979 on Wilberforce and Huxley, A Legendary Encounter, observed that “Science, in the first half of the nineteenth century as in previous centuries, was part of the intellectual culture of mankind, into which all might enter and from which all might profit. But from 1860 onwards it becomes more of a closed shop, with its own puritan ethic, from which amateurs are more and more excluded.” That is a retrograde development, one which Dr. Nadal has in some ways sought to reverse. Unfortunately, when a fit of pique motivates him to do so, he takes refuge in precisely this form of snobbery. For many 20th century academics, Lucas writes “it is a point of professional pride to know nothing outside their own special subject.” We should all know something outside of our own special subject. Specialists should accept that their job is to speak to us all, not only to their peers, who incidentally, seldom reach consensus on matters subject to significant controversy.

Ultimately then, the debate cannot be resolved as a matter of scientific fact. It does not matter how ardently either side wishes their own viewpoint to be accepted as unassailable. We are debating value judgments, and value judgments are not matters of scientific fact at all. Value judgments may, and should, reference what IS scientifically known and knowable. The ultimate pro-life argument, all the way back to the briefs submitted when Roe v. Wade was argued, is that a fetus is a person, within the legal meaning of the Fourteenth Amendment – in fact that such a person exists from the moment a zygote is formed. The court could find no precedent at all in American or British jurisprudence for that assertion. If one is to be found, or devised and established, it will not be found as a matter of scientific fact or expert opinion, but as a legal and cultural value judgment informed by undisputed scientific facts.

Sunday, March 07, 2010

We Were Going To Pay Off The National Debt...

In the abstract, it plays well to talk about the big deficits. We all agree that the budget needs to be balanced and the national debt needs to be paid down. But we live in the real world. The debt came from somewhere, it exists for a reason, balancing the budgets require some choices to be made, and there is some delicate timing to be determined.

The last time we had
(a) a balanced budget
(b) a budget surplus
(c) payments made to lower the national debt

was on the watch of one William Jefferson Clinton. I didn’t really like Clinton much, and I loved a good Clinton joke. He showed dismally poor judgement fooling around with an intern barely older than his daughter, but when it comes to fiscal discipline, he was the man.

George W. Bush could have acted like a Republican, of the old school. He could have said, wow, we’ve begun to pay down the national debt for the first time since the 1940s, let’s keep it up. Instead, he took the advice that “Reagan proved deficits don’t matter.” Instead he said “wow, a surplus, let’s give it back to the people.” (If we asked the government to budget like a home-owning family with a mortgage, this is like saving hundreds of dollars on your monthly payment by switching to an INTEREST ONLY “Smart Choice” loan AND taking out a second mortgage to finance a vacation to Hawaii!!!

So, for seven relatively prosperous years, when we should have been saving for a rainy day, or at least paying down our debt load, GWB nearly doubled the size of the debt. He paid for those “tax cuts” by mortgaging our country to the Bank of China.

President Obama took office as the economy crashed, and everyone, including GWB, recognized that we had to do some fast spending, no matter what the impact on the debt, to save the economy. It was perfectly true — we did. IF we had continued paying down the debt during good times, we could better have absorbed the unavoidable deficit spending in bad times. But, because of the incredible immaturity and fiscal profligacy of the Republican years, now we have had to do deficit spending on top of a huge debt.

Obama will have to bring the deficit down. He doesn’t have the option to do it too quickly. That is unfortunate, but nobody has proposed a specific set of either tax increases or program cuts that would do the job. That is because Americans have become used to the illusion that we can have lots of programs AND tax cuts. Its time for a reality check. We need leaders in Washington prepared to tell people, for every “tax cut” they talk about, exactly what the people are going to have to give up in the way of program. We need leaders who are prepared to tell people, for every program, exactly what additional tax revenue will be needed to pay for it — and where it will come from.

Finally, we need voters who won’t turn people out of office if they have the nerve to tell us the truth.

Friday, January 08, 2010

Would You Like Your Baby Ravaged, Badly Damaged, or Healthy?

"Would you like your baby to be ravaged by rubella, blind, with impaired cognitive capacity, and partially crippled?" Most parents, offered this choice PRIOR to conception, would of course say "No, I'll take the healthy baby." I can't quite picture anyone, in that context, responding "Oh, but that's unfair, there should be some rubella-ravaged babies in the world TOO. They have a RIGHT to be born, so some parents have to be brave and committed enough to accept them."

Likewise, if parents could select which egg to impregnate, which sperm would win the race to give its peculiar DNA to a new zygote, would prospective mother and father CHOOSE the egg and sperm which would form a zygote exhibiting Down's Syndrome? Not at all. They would carefully select for 23 healthy pairs of chromosomes. It is possible that some of the paid staff of Down's syndrome advocacy organizations might actually object. “Why this unseemly prejudice against a natural condition? These genes have a right to expression in the post-partum population.” That sounds dangerously close to the muddled mental meanderings of Richard Dawkins: selfish genes indeed.

Somehow, when the issue is a post-conception decision whether to terminate a badly damaged pregnancy, a fair number of sincere voices opine “you can't destroy that child.” Only in the most technical biological sense is it a child. There was a time when prospective parents had no way to know, prior to delivery, how healthy the child was. During the past fifty years or more, many means of testing and examining the zygote, blastocyst, embryo, and early stages of fetal development, have been discovered and devised. There are clear, objective standards for assessing whether the tissue from which a child is growing is either badly misconstructed, or severely ravaged. It is only sensible, at this stage, to remove the damaged tissue and start over.

Parents who are firmly committed to the understanding that a new human being exists, with full right to protection, from conception onward, have every legal and moral right to carry such pregnancies to term. In truth, the entire community will bear some of the unavoidable costs of that decision. But very few people would intervene in such a private individual decision, merely because the resulting child might “become a burden to society.”

Some parents sincerely believe that it would be an act of unspeakable cruelty to bring such a child into the world, if it can be prevented early enough in pregnancy. In fact, the number of babies born with Down's Syndrome has been markedly reduced, in the United States, because a tremendous number of parents make precisely that decision. It is a sensible, compassionate, and rational decision, albeit some parents make a very different choice.

Imagine a soul, awaiting attachment to a new human baby, in whatever metaphysical muster zone such souls gather in. This soul observes that the intended mother is carrying a fetus which is badly deformed. The soul cries out in agony, “No mommy, I don't want to attach to that body. I want to live life to my full potential. Take that damaged tissue out and make me a new healthy body.” Nobody knows of course if that is how attachment of the soul works. Nor do we know that it is not. It is a possibility worth considering.

The counter-argument is often framed in reference to a severely disabled child already born. The simple truth is, if the child has been born, then abortion is not an issue for that child. Further, by the time the question is posed in this manner, the child has a name, a history, an identity, a place in a family. Our culture and our laws have always protected babies delivered by live birth. Rightly so. If a person is born with disabilities, they are here, they have to make the best of it, and everyone tries to accommodate the disability to help them make the best of it. But there is nothing good about the disability. If the person concerned could get the disability taken away, most would do so. Disabilities are a pain, they hamper the person who has one, they put an extra strain on their relations with others, however accepting and loving. It is good to cope successfully, even to triumph over disability. It is even better not to have one.