Here is a list of the ideas I would like to see lawyers believe. They are not original, but come from the ideas of a whole host of writers and philosophers and statesmen. At Trinity Law School, an evangelical protestant Christian law school, we do our best, not only to teach the law and legal thinking as they are, but also to present these ideas to the students in a persuasive way.
a. Lawyers should be professionals whose practice improves the public perception of the profession, earns the confidence of their clients, and brings glory to God.
b. Lawyers should be collegial, and engage their peers with respect and professionalism even if they think their peers fall short of those standards. Lawyers should engage the culture of the law in the Bar, in the courtroom and in the classroom. They should not separate themselves from mainstream legal culture – instead they should reform and improve it.
c. Lawyers should engage the culture.
d. Lawyers should be professionals who serve their clients by counseling them about moral implications and human costs of conduct, not just the arguable legality of conduct. Lawyers themselves should practice law in a way that is above reproach – in contrast to the view that lawyers can do whatever is not clearly illegal.
e. It is appropriate for Christians to act as advocates in the legal system, even for parties that are guilty or in the wrong, provided that they are honest with the court and with their client, and do not knowingly participate in the offering of false testimony. In representing blameworthy clients the believing attorney, as a fellow sinner saved by God’s grace, has the opportunity to be an instrument of God’s mercy and grace. But, Christians should not file or maintain lawsuits they know to be frivolous.
f. Christians need to be loving, merciful, empathetic, and polite, as well as just, especially in the legal and political realms.
g. All human beings are created in the image of God. As such they should be treated with dignity and respect regardless of status, origin, race, or conduct. All human beings should be seen as equal before the law in the sense that the law applies in the same way to them all, all are imperfect sinners, and all are entitled to appropriate due process. Lawyers should seek real due process of law for all, but should not seek special privileges or protections for genuine evil doers. Nor should lawyers advocate laws designed to shelter real evil from the reach of the law or the disapproval of society.
h. Human laws should not impose burdens that people cannot bear.
i. Human law should not forbid all that is immoral or require all that is moral. Because we all violate God’s moral law all the time, human laws cannot be coextensive with God’s moral law. For example, God’s law deals with our thoughts and feelings. Human laws should only prohibit specific external acts or omissions – not thoughts or feelings (though wrongful intent evidenced by action may be taken into account by human law; e.g. malice).
j. Human law should have respect for victims and should require, when practical, that the perpetrators of crimes make restitution to the known victims of the crime.
k. Human laws and constitutions should be interpreted in much the same way as the Bible – to give effect to the law’s intent – not the whims and evolving desires of the interpreter or culture. Words actually have meanings and the mischiefs laws are passed to correct are discoverable. The plane meaning of a text and the purposes of the authors provide guidance which should be followed. If you want a new subjective Constitutional right, try to amend the Constitution – do not claim it says what it does not say.
l. Human laws should be interpreted with the presumption that the law is meant to work justice with mercy – not to create new harms.
m. Human government exists to promote good and punish evil. Laws to use government to promote moral evils or to seriously limit our liberty to choose among objectively moral goods are illegitimate and should be changed rather than enforced.
n. Human laws should be reasonable, for the common good, and within the limits of timeless objective moral principles known to all people through God’s general and special revelation. Such limits do not violate the First Amendment – they are part of the Natural Law that gives the First Amendment the force and authority it possesses.
o. The subjects of some human laws concern matters, that while implicating the common good, are morally indifferent. It must be recognized that while feelings and arguments on these matters may be intense, they are not in the same category as laws directly dealing with things moral or immoral. Additional deference is due to opponents in such areas of argument. There is not an inherently “Christian” position on policies concerning indifferent matters like statutes of limitation or choices of armaments even if there may be good reasons to adopt one approach over another.
p. Human government cannot solve all human problems. In trying to solve some problems government occasionally creates worse problems. But government has an obligation to protect the weak, to aid the genuinely oppressed, and to restrain evil, all through the rule of law.
q. No objective right can exist to do a moral wrong, though some real objective rights may make it more difficult to police criminal acts.
r. Even when human laws are stupid or obnoxious or illegitimate we generally obey them until we can have them changed, unless they command what God forbids or forbid what God commands, in which case opposition to the offending law is necessary. If the legal means of change are not available, in some cases civil disobedience may be necessary and appropriate as part of a concerted strategy to change bad laws that do not go so far as to command what God forbids or to forbid what God commands. But care and wisdom must be used in determining when such civil disobedience is appropriate.
Thursday, August 30, 2007
Wednesday, August 29, 2007
Political Satire from John Mark Reynolds
I do not always agree with the brilliant Biola Professor John Mark Reynolds, but his political satire pieces on the new movement for "political nonalignment" by Christians are very very funny and very to the point. The articles are http://www.scriptoriumdaily.com/2007/08/01/lose-ten-commandments-for-evangelical-leaders-in-politics/ and http://www.scriptoriumdaily.com/2007/08/02/god-is-not-a-man-or-a-woman-so-we-shouldnt-be-either/.
Hat tip to Contrarian Views and Evangelical Outpost.
Hat tip to Contrarian Views and Evangelical Outpost.
Tuesday, August 28, 2007
What to think about Universal Health Care?
Health care is an important issue. Cancer Doctor Vance Esler deals with some of the issues involved with universal coverage at his blog This Wasn't in the Plan. See for example http://vesler.blogspot.com/2007/08/healing-our-sicko-health-care-system.html and http://vesler.blogspot.com/2007/08/medicare-against-research-coverage.html.
Book Review: Cyril Barber's The Dynamics of Effective Leadership: Learning from Nehemiah
I recently had the very happy experience of reading Cyril Barber’s commentary on the book of Nehemiah, the title appearing above in the heading for this blog article. Barber’s book is both a superior commentary on Nehemiah and a superior leadership primer.
Barber fails to fall into the pitfall that many pastors fall into with respect to the book of Nehemiah. He does not see Nehemiah as an allegory of church building programs or an allegory of improvement of the soul. Instead, he takes the book at face value and sees the quite literal leadership style and characteristics of Nehemiah as something we can learn from. His insights into what makes a good leader are excellent and not your run-of-the-mill trendy stuff.
Barber comes to the discussion of leadership with a biblical worldview instead of the dominant secularist worldview. He is open to the lessons the Bible actually teaches rather than overlaying upon it what Harvard Business School or Madison Avenue might think. But that is not to say that Barber’s views are not practical. They are extremely practical and noteworthy.
Barber lays out the profile of Nehemiah verse by verse and then summarizes in the end the major conclusions that he has reached from the biblical example. Barber notes that an effective leader needs to have integrity. “He must possess a brightness of character and soundness of moral principles. He must know and stand for what is right—even in the face of popular disfavor.”
Barber notes that a good leader also needs conviction. He analyzes and shows that this conviction is founded on our faith in God and requires both confidence in ourselves and courage. Loyalty, stability, and concern for others are the other major characteristics that Barber identifies. Rounding out the characteristics of a good leader are discernment, motivation, and tact. But Barber does not see tact as the notion of telling people what they want to hear, but rather he notes that true tact must be founded upon truth.
Barber also analyzes the principles of sound leadership including knowledgeability, ability to maintain moral, and setting an example.
We also have some interesting observations along the way. For example he notes this about freedom: “Political freedom is based on spiritual freedom. When spiritual freedom is sacrificed through the toleration of evil, it inevitably results in oppression and the demise of moral standards. To counteract these trends, we need a return to the Word of God (see Nehemiah 8), then by submitting ourselves to it, and confessing our failures and shortcomings, we can begin to walk in a path of obedience, righteousness, and true holiness. Out of a spirit of genuine renewal, there comes a spiritual, social, and national freedom.”
In other passages that provide practical advice for leaders, Barber discusses how Nehemiah dealt with the task faced by middle managers—how to deal with criticism, how to deal with gossip, and how to deal with opposition from both within and without.
Nehemiah is a model leader and Barber has done a model job in expounding that model to us through his book, The Dynamics of Effective Leadership: Learning from Nehemiah.
Barber fails to fall into the pitfall that many pastors fall into with respect to the book of Nehemiah. He does not see Nehemiah as an allegory of church building programs or an allegory of improvement of the soul. Instead, he takes the book at face value and sees the quite literal leadership style and characteristics of Nehemiah as something we can learn from. His insights into what makes a good leader are excellent and not your run-of-the-mill trendy stuff.
Barber comes to the discussion of leadership with a biblical worldview instead of the dominant secularist worldview. He is open to the lessons the Bible actually teaches rather than overlaying upon it what Harvard Business School or Madison Avenue might think. But that is not to say that Barber’s views are not practical. They are extremely practical and noteworthy.
Barber lays out the profile of Nehemiah verse by verse and then summarizes in the end the major conclusions that he has reached from the biblical example. Barber notes that an effective leader needs to have integrity. “He must possess a brightness of character and soundness of moral principles. He must know and stand for what is right—even in the face of popular disfavor.”
Barber notes that a good leader also needs conviction. He analyzes and shows that this conviction is founded on our faith in God and requires both confidence in ourselves and courage. Loyalty, stability, and concern for others are the other major characteristics that Barber identifies. Rounding out the characteristics of a good leader are discernment, motivation, and tact. But Barber does not see tact as the notion of telling people what they want to hear, but rather he notes that true tact must be founded upon truth.
Barber also analyzes the principles of sound leadership including knowledgeability, ability to maintain moral, and setting an example.
We also have some interesting observations along the way. For example he notes this about freedom: “Political freedom is based on spiritual freedom. When spiritual freedom is sacrificed through the toleration of evil, it inevitably results in oppression and the demise of moral standards. To counteract these trends, we need a return to the Word of God (see Nehemiah 8), then by submitting ourselves to it, and confessing our failures and shortcomings, we can begin to walk in a path of obedience, righteousness, and true holiness. Out of a spirit of genuine renewal, there comes a spiritual, social, and national freedom.”
In other passages that provide practical advice for leaders, Barber discusses how Nehemiah dealt with the task faced by middle managers—how to deal with criticism, how to deal with gossip, and how to deal with opposition from both within and without.
Nehemiah is a model leader and Barber has done a model job in expounding that model to us through his book, The Dynamics of Effective Leadership: Learning from Nehemiah.
Tuesday, August 21, 2007
Jesus Divinity
At Cranmer an apparent Muslim has inquired about my claim that Jesus is God. She says he did not claim to be God. I replied that He did, both in word and deed. Apart from the many passages in the New Testament where others identify him as God, Jesus himself did make such a claim.
Here are my elaborations on Jesus claims to divinity in word and deed.
Here is a link with lots of articles on Jesus divinity: http://www.loveliftedme.com/site/OurMinistry/StudyResources/TheologyDeityofChrist/tabid/154/Default.aspx.
Also let me lay out a few of the many passages that support Jesus claim to be God.
First, we have claims made by action. Jesus did many things only God can do. You could say he did them in the power of God, but they are the sort of things that testify to who Jesus was. The similar miracles done by Jesus followers have been done “In Jesus Name” – in other words through Jesus authority. Jesus raised the dead (Matthew 9:18 – 26, Luke 7:12 – 17, John 11:1 – 44), made or healed human eyes out of mud (John 9:6 – 7), forgave sins (Mark 2:5 – 12, Luke 5:17 – 26), and created bread and fish to feed thousands (Mark 6:30 – 44).
Jesus accepted Peter’s statement that he was the “Son of the living God”, a statement that made Jesus divine if true. See Matthew 16:16 – 17. Jesus also accepted worship (Matthew 14:33, 28:9, 17, 16 – 20, Luke 19:35 – 40, John 9:38). Only God has a right to do this. You cannot claim Jesus is not God, but is a nice holy man if he accepted the worship due only to God alone.
Jesus claimed to be God’s son, as well as to be God. See John 1:49, 3:10 – 21, 5: 16 – 47, 8:12 – 36, The Jews of the time clearly understood that sonship implied being the same thing as the father – so Jesus claim to be God’s son was a claim to be God. See John 5:18.
Jesus also referred to himself by the term that only God spoke of himself. It was forbidden to utter the name in Hebrew culture. Yet Jesus says I AM – YHWH – of himself. See John 8:58 – 59. The Jewish leaders knew what this meant and tried to stone Jesus for claiming to be God.
Jesus also claimed to be God through riddles. Jesus implied he had lived from eternity. Job 19:25 already said there would be a “redeemer” who was alive in Job’s time and who would stand upon the earth at the resurrection. Jesus said he existed before Abraham. See John 8:49 – 59. He also pointed out that David called the Messiah “my Lord.” See Mark 12:35 – 37, Luke 20:41 – 44. How could this be since the Messiah would be David’s son? Only if the Messiah was the incarnate God/Man of the Christian trinity.
Before any of this happened, the Old Testament predicted that a man, the Messiah, would also be God – “mighty God, everlasting father.” See Isaiah 9:6 – 7. So none of this should really be a surprise to anybody really paying attention.
Here are my elaborations on Jesus claims to divinity in word and deed.
Here is a link with lots of articles on Jesus divinity: http://www.loveliftedme.com/site/OurMinistry/StudyResources/TheologyDeityofChrist/tabid/154/Default.aspx.
Also let me lay out a few of the many passages that support Jesus claim to be God.
First, we have claims made by action. Jesus did many things only God can do. You could say he did them in the power of God, but they are the sort of things that testify to who Jesus was. The similar miracles done by Jesus followers have been done “In Jesus Name” – in other words through Jesus authority. Jesus raised the dead (Matthew 9:18 – 26, Luke 7:12 – 17, John 11:1 – 44), made or healed human eyes out of mud (John 9:6 – 7), forgave sins (Mark 2:5 – 12, Luke 5:17 – 26), and created bread and fish to feed thousands (Mark 6:30 – 44).
Jesus accepted Peter’s statement that he was the “Son of the living God”, a statement that made Jesus divine if true. See Matthew 16:16 – 17. Jesus also accepted worship (Matthew 14:33, 28:9, 17, 16 – 20, Luke 19:35 – 40, John 9:38). Only God has a right to do this. You cannot claim Jesus is not God, but is a nice holy man if he accepted the worship due only to God alone.
Jesus claimed to be God’s son, as well as to be God. See John 1:49, 3:10 – 21, 5: 16 – 47, 8:12 – 36, The Jews of the time clearly understood that sonship implied being the same thing as the father – so Jesus claim to be God’s son was a claim to be God. See John 5:18.
Jesus also referred to himself by the term that only God spoke of himself. It was forbidden to utter the name in Hebrew culture. Yet Jesus says I AM – YHWH – of himself. See John 8:58 – 59. The Jewish leaders knew what this meant and tried to stone Jesus for claiming to be God.
Jesus also claimed to be God through riddles. Jesus implied he had lived from eternity. Job 19:25 already said there would be a “redeemer” who was alive in Job’s time and who would stand upon the earth at the resurrection. Jesus said he existed before Abraham. See John 8:49 – 59. He also pointed out that David called the Messiah “my Lord.” See Mark 12:35 – 37, Luke 20:41 – 44. How could this be since the Messiah would be David’s son? Only if the Messiah was the incarnate God/Man of the Christian trinity.
Before any of this happened, the Old Testament predicted that a man, the Messiah, would also be God – “mighty God, everlasting father.” See Isaiah 9:6 – 7. So none of this should really be a surprise to anybody really paying attention.
Monday, August 20, 2007
Jesus and Islam
One of my favorite blogs, both for content and style is the English blog Archbishop Cranmer (found at http://www.archbishop-cranmer.blogspot.com/).
This week, among other interesting articles, His Grace deals with a television program on the what Muslims think about Jesus. Cranmer's points are good: The Muslim view of Jesus is false and unhistorical, yet no counter view is likely to be presented (Muslims reject the divinity of Jesus and deny that he was crucified or resurrected). He points out how no one worries about offending Christians, but many are deferential to Islam. No TV station would make an honest film on the "Christian view of Mohamed." And, Christians should be upset by this sort of blasphemy that proselytizes for a false religion that is causing the world unbelievable grief.
Cranmer says: "There will, of course, be nothing objective about the historical evidence for the crucifixion and resurrection: the documentary will unashamedly portray Jesus as Muslims see him, and use the Qur’an as its primary source material, completely and conveniently ignoring the fact that it was ‘revealed’ centuries after Jesus lived and the Gospels were penned. The accounts of the real primary material are thereby rubbished, and Jesus’ divinity is denied. It is both blasphemous and offensive to Christians the length and breadth of the country, but as long as it’s not blasphemous for Muslims, everything’s alright."
In a way, this television special is shocking, because just when the world needs to convince Muslims to stop believing in Islam, and preferably to believe in the real and divine Jesus, not only for their eternal salvation, but for the survival of our own freedom and civilization, so many elites in the UK and Europe are out doing the opposite to their own hurt. I suppose it is more empirical evidence for the reality of evil. Only the devil could get Muslims, on the one hand, and liberal non-believing "christian", secularists, atheists, and socialists on the other, on the same page. But then "liberal Christians" (i.e. those who do not really believe the bible) believe something similar to the Muslims in that they always had trouble with Jesus death, atonement for our sins, resurrection, eternality, identity as the Logos, and divinity. At least the Muslims do not have trouble with miracles and the virgin birth, the early stumbling blocks of the "liberals."
What we really need today are whole seasons and collections of films that will be shown in the middle east and in Muslim markets in the West that explain the truth about Christianity and western civilization in subtle sophisticated ways. The Jesus film and Mel Gibbson's film about Jesus have had some success in changing hearts and minds. We need much more. We need to at least win their "tolerance" and "understanding." But if we really want peace Islam will need to be discredited and the truth believed in its place. This is a tall order when so many in the west doubt the truth. But we can pray and we can make a start. Doing nothing good only makes failure more likely.
This week, among other interesting articles, His Grace deals with a television program on the what Muslims think about Jesus. Cranmer's points are good: The Muslim view of Jesus is false and unhistorical, yet no counter view is likely to be presented (Muslims reject the divinity of Jesus and deny that he was crucified or resurrected). He points out how no one worries about offending Christians, but many are deferential to Islam. No TV station would make an honest film on the "Christian view of Mohamed." And, Christians should be upset by this sort of blasphemy that proselytizes for a false religion that is causing the world unbelievable grief.
Cranmer says: "There will, of course, be nothing objective about the historical evidence for the crucifixion and resurrection: the documentary will unashamedly portray Jesus as Muslims see him, and use the Qur’an as its primary source material, completely and conveniently ignoring the fact that it was ‘revealed’ centuries after Jesus lived and the Gospels were penned. The accounts of the real primary material are thereby rubbished, and Jesus’ divinity is denied. It is both blasphemous and offensive to Christians the length and breadth of the country, but as long as it’s not blasphemous for Muslims, everything’s alright."
In a way, this television special is shocking, because just when the world needs to convince Muslims to stop believing in Islam, and preferably to believe in the real and divine Jesus, not only for their eternal salvation, but for the survival of our own freedom and civilization, so many elites in the UK and Europe are out doing the opposite to their own hurt. I suppose it is more empirical evidence for the reality of evil. Only the devil could get Muslims, on the one hand, and liberal non-believing "christian", secularists, atheists, and socialists on the other, on the same page. But then "liberal Christians" (i.e. those who do not really believe the bible) believe something similar to the Muslims in that they always had trouble with Jesus death, atonement for our sins, resurrection, eternality, identity as the Logos, and divinity. At least the Muslims do not have trouble with miracles and the virgin birth, the early stumbling blocks of the "liberals."
What we really need today are whole seasons and collections of films that will be shown in the middle east and in Muslim markets in the West that explain the truth about Christianity and western civilization in subtle sophisticated ways. The Jesus film and Mel Gibbson's film about Jesus have had some success in changing hearts and minds. We need much more. We need to at least win their "tolerance" and "understanding." But if we really want peace Islam will need to be discredited and the truth believed in its place. This is a tall order when so many in the west doubt the truth. But we can pray and we can make a start. Doing nothing good only makes failure more likely.
Thursday, August 16, 2007
Why I still have doubts about Romney
A moth or so ago I drew a lot of fire by suggesting a candidates religious beliefs really do matter because government policy if affected by what we believe about morality, human nature, justice, etc. Since that time, on of the Presidential candidates, Romney, has given a number of interviews and answers clearly explaining that his beliefs as a Mormon will have no affect on public policy. For example, Romney explained that even though he is personally opposed to alcohol, he did not believe that belief should support legal prohibition. But all that did not make me feel better.
Irrelevant to public policy, then they must be using some other world view or set of ideas in deciding public policy. Based on his history, I strongly suspect Romney of being a pragmatist or opportunist (of course most of the other candidates probably have similar views). Why is that a problem? Because it means that for public decisions Romney has no principled understanding of objective moral truth, human nature, and the way things work. Instead he will do whatever he thinks will keep him in office or please “important” people. We have been running government that way most of the time since 1930 and it creates and sustains problems and errors. For example, a pragmatists running for office in 1825 would have no reason to oppose slavery or work for abolition. Today most of the pragmatists in Washington have done little of what they could do to end abortion on demand, prevent cloning, save marriage, or expand religious freedom of expression despite the fact that the majority of Americans favor these things. They just don’t think those positions “work” and they have no principled moral insight to guide them. Self interest is most of what they think about.
What could a candidate say instead of what Romney said? If he were a Christian he could have said “my faith believes a relationship with God cannot be formed as a result of human laws or force. We also believe all people commit sins. The government cannot require all virtue or punish all vice because humans cannot handle that kind of legalism. Instead, government should only regulate external acts that cause fairly serious and direct harm to the public or individuals and can be deterred much of the time. Government should only make laws that are within the capacity of most people to obey. And by the way, the moderate use of alcohol is not immoral. My faith believes that not all people will become Christians, but all people are entitled to be treated with dignity and due process. My faith believes in love and mercy and justice. My faith believes all people have been given rights to life, liberty, property, and freedom to choose among real moral goods. My faith believes that its practitioners are human, make mistakes, and are not always faithful to the principles of my faith even though they should always strive to be. My faith believes that the government is there to restrain evil and coordinate and encourage good – not to try to solve all human problems (it can’t) and not to be a source of loot for those with power and influence. Government is supposed to work for justice with mercy.” He could have said all of that if he were a Christian – and if his faith did affect his political views.
Irrelevant to public policy, then they must be using some other world view or set of ideas in deciding public policy. Based on his history, I strongly suspect Romney of being a pragmatist or opportunist (of course most of the other candidates probably have similar views). Why is that a problem? Because it means that for public decisions Romney has no principled understanding of objective moral truth, human nature, and the way things work. Instead he will do whatever he thinks will keep him in office or please “important” people. We have been running government that way most of the time since 1930 and it creates and sustains problems and errors. For example, a pragmatists running for office in 1825 would have no reason to oppose slavery or work for abolition. Today most of the pragmatists in Washington have done little of what they could do to end abortion on demand, prevent cloning, save marriage, or expand religious freedom of expression despite the fact that the majority of Americans favor these things. They just don’t think those positions “work” and they have no principled moral insight to guide them. Self interest is most of what they think about.
What could a candidate say instead of what Romney said? If he were a Christian he could have said “my faith believes a relationship with God cannot be formed as a result of human laws or force. We also believe all people commit sins. The government cannot require all virtue or punish all vice because humans cannot handle that kind of legalism. Instead, government should only regulate external acts that cause fairly serious and direct harm to the public or individuals and can be deterred much of the time. Government should only make laws that are within the capacity of most people to obey. And by the way, the moderate use of alcohol is not immoral. My faith believes that not all people will become Christians, but all people are entitled to be treated with dignity and due process. My faith believes in love and mercy and justice. My faith believes all people have been given rights to life, liberty, property, and freedom to choose among real moral goods. My faith believes that its practitioners are human, make mistakes, and are not always faithful to the principles of my faith even though they should always strive to be. My faith believes that the government is there to restrain evil and coordinate and encourage good – not to try to solve all human problems (it can’t) and not to be a source of loot for those with power and influence. Government is supposed to work for justice with mercy.” He could have said all of that if he were a Christian – and if his faith did affect his political views.
Friday, August 03, 2007
HR 1592 - the Hate Crimes Bill
HR1592 is a bill ostensibly designed to prevent hate crimes. It allows federal law enforcement agencies to assist local officials when a crime has been committed “motivated by prejudice based on actual or perceived race, color, origin, natural origin, gender, sexual orientation, gender identity, or disability of the victim, or is a violation of state, local, or tribal hate crime laws.” The law also prohibits similar violent acts motivated by such hatred within certain federal jurisdictions involving interstate commerce.
On its surface, the hate crimes act would appear to be somewhat non-controversial. Nobody should be in favor of crimes of violence against anybody, let alone crimes of violence based on the kinds of prejudice listed in the act. The act even has a rule of construction which provides “nothing in this act, or in the amendments made by this act, shall be construed to prohibit any expressive conduct protected from legal protection by or any activities protected by the free speech or free exercise clauses of, the First Amendment to the Constitution.” It was introduced on March 20th of this year, scheduled for debate on April 25th and passed the House by a vote of 237 yes, 180 no, and 16 not voting.
The bill was passed by the House on May 3, 2007. But during the debate on the bill, Congressman Gohmert asked a simple question: “If a minister was giving a sermon, a Bible study, or any kind of written or spoken message saying that homosexuality was a serious sin and a person in the congregation went out and committed a crime against a homosexual, would the minister be charged with the crime of incitement?” After a lot of pressure by Congressman Lungren on the Congressmen sponsoring the legislation to answer the question, Democrat congressman Artur Davis from Alabama said that the answer to the question was “yes.” In other words, pastors could end up being prosecuted for inciting a hate crime as a result of this legislation if they were critical of homosexuality in the pulpit or in a Bible study, and if one of their congregants misunderstood this and took it as a justification for violence (Which it is not. The status of homosexual acts as sins does not in any way justify individuals acting violently toward people who commit those acts or who endorse them.).
Courts often look to the legislative history of a bill in order to interpret and understand it. A court applying federal law about criminal incitement would be very likely to consult this debate and conclude because of Congressman Davis’ statement that the law should apply to allow the prosecution of the minister with the errant congregant. Attempts to have the bill amended to provide better protection and clarification to prevent the kind of problem described above were largely unsuccessful. But, the rule of construction was successfully added by amendment about April 30th. It is possible that the rule of construction could be construed to prevent the kind of anti-Christian application discussed above. But it must be remembered that while the First Amendment is applied very broadly by the courts in matters such as flag burning and pornography, it is not given a broad scope with respect to the free exercise clause or certain types of speech. It would still be possible for the courts to conclude that anti-homosexual speech was not “protected speech” under the First Amendment. A fair or honest court would have to say that speech characterizing homosexuality as sin ought to be protected speech since it flows from religious, ethical, and moral debate that is almost as much at the core of religious speech as the proclamation of the gospel. In the current legal environment, this is by no means a foregone conclusion.
Hat tip to The Truth in Black and White.
On its surface, the hate crimes act would appear to be somewhat non-controversial. Nobody should be in favor of crimes of violence against anybody, let alone crimes of violence based on the kinds of prejudice listed in the act. The act even has a rule of construction which provides “nothing in this act, or in the amendments made by this act, shall be construed to prohibit any expressive conduct protected from legal protection by or any activities protected by the free speech or free exercise clauses of, the First Amendment to the Constitution.” It was introduced on March 20th of this year, scheduled for debate on April 25th and passed the House by a vote of 237 yes, 180 no, and 16 not voting.
The bill was passed by the House on May 3, 2007. But during the debate on the bill, Congressman Gohmert asked a simple question: “If a minister was giving a sermon, a Bible study, or any kind of written or spoken message saying that homosexuality was a serious sin and a person in the congregation went out and committed a crime against a homosexual, would the minister be charged with the crime of incitement?” After a lot of pressure by Congressman Lungren on the Congressmen sponsoring the legislation to answer the question, Democrat congressman Artur Davis from Alabama said that the answer to the question was “yes.” In other words, pastors could end up being prosecuted for inciting a hate crime as a result of this legislation if they were critical of homosexuality in the pulpit or in a Bible study, and if one of their congregants misunderstood this and took it as a justification for violence (Which it is not. The status of homosexual acts as sins does not in any way justify individuals acting violently toward people who commit those acts or who endorse them.).
Courts often look to the legislative history of a bill in order to interpret and understand it. A court applying federal law about criminal incitement would be very likely to consult this debate and conclude because of Congressman Davis’ statement that the law should apply to allow the prosecution of the minister with the errant congregant. Attempts to have the bill amended to provide better protection and clarification to prevent the kind of problem described above were largely unsuccessful. But, the rule of construction was successfully added by amendment about April 30th. It is possible that the rule of construction could be construed to prevent the kind of anti-Christian application discussed above. But it must be remembered that while the First Amendment is applied very broadly by the courts in matters such as flag burning and pornography, it is not given a broad scope with respect to the free exercise clause or certain types of speech. It would still be possible for the courts to conclude that anti-homosexual speech was not “protected speech” under the First Amendment. A fair or honest court would have to say that speech characterizing homosexuality as sin ought to be protected speech since it flows from religious, ethical, and moral debate that is almost as much at the core of religious speech as the proclamation of the gospel. In the current legal environment, this is by no means a foregone conclusion.
Hat tip to The Truth in Black and White.
Wednesday, August 01, 2007
A Genocide Against Women
In a recent article in the on line journal of First Things, Susan Yoshihara highlights one of the terrible side effects of international abortion: what I would call genocide against baby girls.
Yoshihara points out:
“Throughout human history, demographers tell us, nature has provided about 105 male births for every 100 females . . . A Chinese census reports ratios as high as 120–136 boys born for every 100 girls; in Taiwan, ratios of 119 boys to 100 girls; in Singapore 118 boys per 100 girls; South Korea 112 boys per 100 girls; and in India, where the practice was outlawed in 1994, the ratio continues to exceed 120 boys for every 100 girls in some areas. Countries such as Greece, Luxembourg, El Salvador, the Philippines, Cape Verde, and Egypt, even among some ethnic groups in the United States (Chinese, Japanese, and Filipino), are showing the same deadly discrimination against daughters.
What is the cause of the crisis? Experts point to a recent confluence of four main factors: rising access to sonogram technology, increased access to abortion, a preference for sons, and fertility decline.”
Simply banning sex selection abortion will not prevent this hostility toward women from continuing. It is too easy for doctors to document some pretextual reason for the abortion. The genocide of women is another good reason to limit or ban abortion altogether. This sort of abuse is another reason why abortion today is analogous to slavery in the 1800's. Both allowed the dehumanization of certain groups of human beings.
(Hat tip to Rantburg)
Yoshihara points out:
“Throughout human history, demographers tell us, nature has provided about 105 male births for every 100 females . . . A Chinese census reports ratios as high as 120–136 boys born for every 100 girls; in Taiwan, ratios of 119 boys to 100 girls; in Singapore 118 boys per 100 girls; South Korea 112 boys per 100 girls; and in India, where the practice was outlawed in 1994, the ratio continues to exceed 120 boys for every 100 girls in some areas. Countries such as Greece, Luxembourg, El Salvador, the Philippines, Cape Verde, and Egypt, even among some ethnic groups in the United States (Chinese, Japanese, and Filipino), are showing the same deadly discrimination against daughters.
What is the cause of the crisis? Experts point to a recent confluence of four main factors: rising access to sonogram technology, increased access to abortion, a preference for sons, and fertility decline.”
Simply banning sex selection abortion will not prevent this hostility toward women from continuing. It is too easy for doctors to document some pretextual reason for the abortion. The genocide of women is another good reason to limit or ban abortion altogether. This sort of abuse is another reason why abortion today is analogous to slavery in the 1800's. Both allowed the dehumanization of certain groups of human beings.
(Hat tip to Rantburg)
Tuesday, July 24, 2007
Christ's Substitutionary Atonement for Our Sins
At the link is an excellent article by J. I. Packer on the importance of what he calls "penal substitution." This is the idea that Jesus died in our place on the cross so that God could justly say the sentence against us had been carried out against Jesus as our representative substitute and sacrifice, and could then attribute to us the righteous obedience of Jesus. To paraphrase Sproul, "we have been saved from God, by God, for God, through God." The idea that Christ bore our sins so we could be forgiven is clearly evidenced in the prophecy of Isaiah52:13 through 53:12 as well as in the New Testament. It is at the heart of what makes faith in Christ different from other religions. It remains unpopular due to mankind's desire to earn salvation, or to believe that forgiveness has no cost in blood - but it is the truth.
Gonzales v. Carhart; a review
On April 18, 2007, the Supreme Court of the United States issued an opinion in the highly disputed partial-birth abortion case, Gonzales v. Carhart. The case dealt with the constitutionality of Congress’ latest statute restricting the use of partial birth abortion. In an incremental move away from its prior opinions, the Supreme Court upheld the statute banning partial-birth abortion in all circumstances except those necessary to save the life of the mother.
This case was based upon a so-called “facial” challenge to the statute. The plaintiffs argued that the statute was too vague and would ban other types of abortions in such a manner as to seriously limit women’s access to abortion. They also claimed that the statute directly imposed an undue burden on the so-called women’s right to abortion. In addition, they argued that the statute was over broad and fatally in contradiction of prior Supreme Court precedent in that it lacked an exception for the “health of the mother.”
Cases involving abortion have involved some of the greatest distortion of American law since the odd gymnastics undertaken to justify slavery two centuries ago. American law is still suffering today from both the theoretical and practical changes in the law made in order to accommodate the attempt to justify first slavery, and later racism. But embracing evil does that. When we want something that is actually bad but we refuse to admit it is bad, and instead try to rationalize it and create reasons why it is still acceptable, it distorts everything else. Unwillingness to eliminate slavery was a major cause of the United States’ rejection of traditional Protestant Christian understanding of natural law theory and its embrace instead of positivism and pragmatism. The unwillingness of the United States to deal with racism also created and maintained similar philosophical and practical problems with law. Today abortion poses the same threat to our legal system. It causes people to create inconsistencies in substantive and procedural aspects of the law, to distort reality, and to avoid arguing about the real issues.
While the outcome in Carhart is a positive outcome, it nevertheless does not really go far enough and does not escape the gravitational pull of the distortion that abortion causes to the time/space continuum of justice and law. It seems that escaping Roe v. Wade is almost like trying to escape a black hole. It remains to be seen if the Court can develop enough velocity to get away from its prior errors prior to the makeup of the Court being changed back to a more pro-abortion bent.
Justice Kennedy delivered the majority opinion for the Court. It was a 5-4 decision with Justices Kennedy, Roberts, Alito, Thomas, and Scalia voting to uphold the law, and Ginsburg, Stevens, Souter and Breyer dissenting in an opinion written by Justice Ginsburg. There was also an extremely short concurrence written by Justice Thomas with Justice Scalia joining in it, essentially saying that they believe that the Court’s abortion jurisprudence including Casey and Roe has “no basis in the Constitution.” While the case is a victory of sorts for those who are opposed to abortion, it is somewhat disturbing that Justices Roberts and Alito as well as Kennedy are unwilling to come to the same conclusion offered by Scalia and Thomas. What I would like to see from the Court is a simple opinion stating that the offspring of human beings are human beings and entitled to the respect due human beings at all stages of development. As a result, unborn human beings like those further along in development have a right not to be killed with malice of forethought and without justification or excuse. As a result, any reasonable regulation on abortion would be constitutional and the states’ practices in not limiting abortion would effectively be unconstitutional and on an equal protection basis since there is no reason for allowing the intentional termination of human beings at an early stage of development other than to save the life of another human being. In that way, Roe and Casey would be overturned and the absence of a right to abortion in the Constitution would not only be clear, but the presence of a fundamental right to life in all of jurisprudence would finally obtain the recognition it has so long wanted. But just as with slavery, jurisprudence is always distorted when one wants to pick and choose which human beings are entitled to treatment as human beings. It is much simpler and safer to treat them all essentially the same way.
Justice Kennedy’s opinion engaged in a fairly extensive review of the various types of abortion and the comments about them in the record. He noted that the Gonzales case was distinguishable from the prior Stenberg case in which Nebraska’s prior attempt to ban partial-birth abortion was overruled because it contained no protection for the life of the mother. After explaining the trial and Court of Appeal opinions in Carhart, Kennedy sets out to explain why the statute in question is not invalid. He notes that “the act punishes ‘knowingly performing’ a partial-birth abortion.” And then, contrary to the tradition of almost all courts discussing statutes limiting abortion, he actually parses the statute fairly, explaining what it actually means and concluding that the statute is not fatally vague or over broad. Kennedy notes, “The act does not restrict an abortion procedure involving the delivery of an expired fetus. The act, furthermore, is inapplicable to abortions that do not involve vaginal delivery.” He also notes that the act contains specific descriptions of anatomical landmarks so that it is simple to distinguish banned partial-birth abortion from every other type of abortion technique. There is no legitimate argument, according to Kennedy, that anyone should be confused about what this act really bans and what it does not. The act also requires an overt act to kill the baby. This is another safeguard for doctors that prevents them from being wrongly charged with a partial-birth abortion when that wasn’t really what they were undertaking. What Kennedy does not discuss is the elephant in the room. The elephant in the room in the partial-birth abortion case is the simple fact that the way a partial-birth abortion technique works, it is just as simple for a viable fetus to be delivered alive. In fact, it really is simpler. That is the reason why a partial-birth abortion is never necessary for the health of the mother. If the baby is too small to be viable, it can be removed through other techniques without any serious additional risk to the mother. If the baby is viable, it can be delivered alive and attempting to kill it during delivery does not make the procedure safer, but rather less so. This is completely ignored by the dissent that goes into all of the reasons why other types of abortion are less safe. And the dissent completely ignores the reality that delivering the baby alive is safer than any of the abortion methods or partial-birth abortion. The Supreme Court happily has never said that the so-called right to abortion involves the right to a dead baby. There is no reason why a baby that can be delivered alive can or should be killed by a physician. The woman may not want to raise the baby or be able to, but in that instance there are plenty of parents in the United States willing to adopt babies. If a baby can be partial-birth aborted, there is no reason why it cannot be born alive. But as I say, the Court fails to discuss this fact. Even now the Court is unwilling to directly address the simple realities of the case perhaps because of political correctness or the danger of looking politicized or foolish.
Another evidence of the Court’s reticence to face up to all of the realities of abortion is that Justice Kennedy’s opinion still does not clearly explain that the unborn baby human being is, in fact, a human being. He does say, “The act does apply both pre-viability and post-viability because, by common understanding and scientific terminology, a fetus is a living organism while within the womb, whether or not it is viable outside the womb.” It still puzzles me that everyone wants to use the Latin word for baby—fetus—to discuss unborn babies. It also seems strange to me that we want to refer to human beings in the womb as “life” rather than referring to them as human beings. I suppose part of this is to be delicate with the feelings of one’s opponents. But those opponents are in no way delicate or careful with those who have differing sentiments. It is true that arguments on political topics can be overly inflammatory. For example, the writings of William Lloyd Garrison in favor of abolishing slavery probably made the abolition of slavery more difficult because of the inflammatory nature. Nevertheless, one must face the reality of the thing in order to make good decisions about it. Referring to living unborn human beings as “potential life” or even “life” is still ignoring the real nature of the child. Doing so will distort our understanding of what we’re really talking about and is likely to continue to distort the making of public policy or the providing of justice.
Justice Kennedy also happily re-establishes contact with the Court’s normal jurisprudence about challenges to statutes. He correctly identifies the doctrine behind void for vagueness challenges: as generally stated, “the void for vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Kennedy asserts that the statute in the Gonzales case is intelligible to reasonable people. In his opinion, Kennedy properly notes that when vagueness does not clearly appear in the statute, the statute is normally entitled to the benefit of the doubt. The Court will be willing to consider an “as applied” challenge to a statute that shows why the statute is being unconstitutionally applied or interpreted in specific cases, but generally the Court does not speculate about how the statute might be misapplied or might be misunderstood in remote hypothetical situations. This is a happy change from other cases involving abortion in which the courts have bent over backwards to claim that there could be remote possibilities that someone might possibly misunderstand a statute regulating abortion rather than waiting for an actual misunderstanding to occur. Kennedy restores a happy balance by looking at the fact that the statute is meaningful and saying that if some abortionist really is prosecuted for doing another kind of abortion because the statute actually proves to be vague, he can then bring an “as applied” challenge. Until that time, the statute should be upheld. Obviously it is highly unlikely that such an “as applied” case will ever occur. Every prosecutor and every abortionist knows precisely what is banned by the Gonzales case. All of the attempts to void it for vagueness are simply argumentative techniques used by lawyers to try to maintain an absolute carte blanche where abortion is concerned.
It would have been nice if Kennedy had been able to overrule the prior Stenberg decision and say that the prior Nebraska ban on partial-birth abortion should have been upheld. But instead, he carefully distinguishes Carhart from Stenberg noting the major differences in the statute that make this statute much more clear and easy to understand. Kennedy even applies the actual canons of constitutional interpretation. He mentions the “canon of constitutional avoidance.” Kennedy says, “The canon of constitutional avoidance, finally, extinguishes any lingering doubt as to whether the act covers the prototypical D&E procedure (another type of abortion). The elementary rule is that every reasonable construction must be resorted to in order to save a statute from unconstitutionality… It is true this longstanding maxim of statutory interpretation has, in the past, fallen by the wayside when the Court confronted a statute regulating abortion. The Court at times employed an antagonistic ‘canon of construction under which in cases involving abortion, a permissible reading of the statute was to be avoided at all cost.’…by contrast (to Stenberg), interpreting the act so that it does not prohibit standard D and E as the most reasonable reading and understanding of its terms.” Three cheers for Justice Kennedy in applying the normal rule of canon of constitutional avoidance evenly. Abortion cases should not be entitled to the extraordinary treatment they have received.
Kennedy also discusses the findings by the Congress. He notes that there is evidence supporting their findings and allows them to be given the deference normally given to congressional findings and congressional intent. “Congress stated as follows, ‘implicitly approving such a brutal and inhumane procedure by choosing not to prohibit it will further coarsen society to the humanity of not only newborns, but all vulnerable and innocent human life, making it increasingly difficult to protect such life.’ The act expresses respect for the dignity of human life. Congress was concerned, furthermore, with the effects on the medical community and on its reputation caused by the practice of partial-birth abortion. The findings in the act explain: ‘partial-birth abortion…confuses the medical, legal, and ethical duties of physicians to preserve and promote life, as the physician acts directly against the physical life of the child, whom he or she had just delivered, all but the head, out of the womb, in order to end that life.’ …There can be no doubt the government has an interest in protecting the integrity and ethics of the medical profession. …Congress determined that the abortion methods it prescribed had a ‘disturbing similarity to the killing of a newborn infant,’ …and thus it was concerned with ‘drawing a bright line that clearly distinguishes abortion and infanticide.’” Kennedy believes that protecting the medical profession by drawing a bright line against infanticide and the congressional interest in protecting the life of the “fetus” are legitimate reasons behind the statute.
Not everything Kennedy says in the opinion is good. Not only are there problems with his omissions, but he does refer to the unborn baby as “the fetus that may become a child.” He also says “the state has an interest in insuring so grave a choice is well informed. It is self-evident that a mother who comes to regret her choice to abort must struggle with grief more anguished and sorrow more profound when she learns only after the event, what she once did not know: that she allowed a doctor to pierce the skull and vacuum the fast-developing brain of her unborn child, a child assuming the human form.” Again, this begs the question in the wrong way by implying that a human being at an appropriate form for its stage of development is somehow not in a “human form.” Quite to the contrary, unborn babies simply look like unborn babies are supposed to look at their appropriate stage of development. They are in the human form. It’s just a human form we’re not as familiar with seeing because it is usually hidden within the womb rather than easily available to our sight. But now with ultrasound and other imaging techniques, there is simply no excuse for maintaining the cloak of mystery over the unborn child that was present in pre-scientific eras.
Kennedy does have some insightful moments in his opinion. In other court opinions in which partial-birth abortion statutes have been found to be both overly broad and vague, the courts have failed to note that such findings are by implication inconsistent. Kennedy does not miss this though. He says, “There would be a flaw in this Court’s logic, and an irony in its jurisprudence, were we first to conclude a ban on both D&E and intact D&E was overbroad, and then to say it is irrational to ban only intact D&E because that does not prescribe both procedures. In some, we reject the contention that the congressional purpose of the act was to place a substantial obstacle in the path of a woman seeking an abortion.” Next in the opinion, Kennedy deals with the health exception question. He allows for the Congress’ findings as credible.
Again, Kennedy wisely follows the Court’s own jurisprudence in non-abortion cases. “The Court’s precedence instructs that the act can survive this facial attack. The Court has given state and federal legislatures wide discretion to pass legislation in areas where there is medical and scientific uncertainty…this tradition rule is consistent with Casey, which confirms the state’s interest in promoting respect for human life in all stages in the pregnancy. Physicians are not entitled to ignore regulations that direct them to use reasonable alternative procedures. The law need not give abortion doctors unfettered choice in the course of their medical practice. Nor should it elevate their status above other physicians in the medical community.” Three cheers for this uniform application of the law instead of giving abortion providers special privileges. Kennedy continues, “A zero tolerance policy would strike down legitimate abortion regulations, like the present one, if some part of the medical community were disinclined to follow the prescription. This is too exacting a standard to impose on the legislative power, exercised in this instance under the commerce clause, to regulate the medical profession. Considerations of marginal safety, including the balance of risks, are within the legislative competence when the regulation is rational and in pursuit of legitimate ends. When standard medical options are available, mere convenience does not suffice to displace them; and if some procedures have different risks than others, it does not follow that the state is altogether barred from imposing reasonable regulations. The act is not invalid on its face where there is uncertainty over whether the barred procedure is ever necessary to preserve a woman’s health, given the availability of other abortion procedures that are considered to be safe alternatives.” In other words, Kennedy takes a very sensible practical approach to the problem. Without being insulting to abortion providers by saying that they are willing to be disingenuous in order to keep performing any kind of abortion they wish, he indicates that even when there is some dissent in the medical community, the Congress is entitled to make findings about what they think is really necessary for health or safety or not. In a way, it would have been better if he had addressed the elephant in the room and noted that partial-birth abortions are never necessary because a living baby that is too large to be removed by other means can be more easily born alive than killed in mid birth. But I suppose that would not be fitting the decorum of a Supreme Court justice. Nevertheless, Kennedy’s opinion is still attacked by the dissent. The dissent, as we noted earlier, goes through all of the reasons why they believe partial-birth abortions might be safer than other abortion techniques. In doing so, the dissent also ignores the elephant in the room—the fact that a live birth is yet safer.
In abortion cases, the whole issue of “health” has been a misnomer. When people think of the health of the mother, they normally think that the mother is going to have some kind of injury or disease or syndrome as the result of giving birth to this baby. While all of that would be within the possible meaning of the term health, the way pro-abortion judges have used “health” is to describe a feeling of psychological well-being. In other words, if a woman thinks she will have apprehension or anxiety or stress because her baby is alive and living with adoptive parents, that is all of the “health risk” needed for the abortionist to make sure she has a dead child rather than a happy living one. That sort of a definition of health is extremely problematic. Yet the abortion industry and pro-abortion judges insist on this strange health idea.
In the last portion of the opinion, Kennedy focuses, as we noted before, on the fact that if there really are problems, the proper means of attacking the statute is an “as applied” challenge. He finally winds up the opinion by saying, “Respondents have not demonstrated that the act, as a facial matter, is void for vagueness, or that it imposes an undue burden on a woman’s right to abortion based on its over breadth or lack of a health exception. For these reasons the judgments of the Court of Appeals for the eighth and ninth circuits are reversed.” The abortion problem is still not solved but at least the Gonzales case is one more incremental step in the right direction. Lately there has been some dissention among organizations opposed to abortion as to whether or not incrementalism is appropriate. But it should be noted that incrementalism is being successful in some ways and has been successful historically. Slavery was eliminated in the United Kingdom incrementally. It was impossible to end the slave trade until the slave trade was first limited by making it easier for privateers and naval vessels to seize slavers. It was then possible to eliminate slavery when the slave trade had been eliminated for some period of time. Economic interest in favor of slavery had to be cut back and trimmed until they no longer held leverage over the legislature. In America, we were able to limit slavery quickly through the Civil War but at a terrible price in blood. It took us far longer to eliminate the horrible problem of racial discrimination and in fact, we are still suffering in some ways from that terrible blight on the human soul. We have made incremental progress toward the elimination of discrimination. I would like to see abortion ended completely by a Supreme Court opinion finding a right to life, or by an amendment to the Constitution clarifying a right to life for all human beings. If that is not politically possible, we need to continue to limit abortions, pressure abortion providers, and educate people so that abortion loses its economic, political, and demographic support enough to make a constitutional amendment possible. We also need to have bloggers, law schools, and other forms of education that affect lawyers, judges, and decision makers discuss this matter and educate people on how abortion really should be viewed and how it can be eliminated. Unless the proper canons of constitutional and statutory interpretation are taught, and unless people are willing to apply a proper natural law jurisprudence, it is unlikely that any set of judges or lawyers produced by the majority of law schools will argue or write the opinion necessary to end abortion in the United States. This is part of the importance of schools like Trinity.
This case was based upon a so-called “facial” challenge to the statute. The plaintiffs argued that the statute was too vague and would ban other types of abortions in such a manner as to seriously limit women’s access to abortion. They also claimed that the statute directly imposed an undue burden on the so-called women’s right to abortion. In addition, they argued that the statute was over broad and fatally in contradiction of prior Supreme Court precedent in that it lacked an exception for the “health of the mother.”
Cases involving abortion have involved some of the greatest distortion of American law since the odd gymnastics undertaken to justify slavery two centuries ago. American law is still suffering today from both the theoretical and practical changes in the law made in order to accommodate the attempt to justify first slavery, and later racism. But embracing evil does that. When we want something that is actually bad but we refuse to admit it is bad, and instead try to rationalize it and create reasons why it is still acceptable, it distorts everything else. Unwillingness to eliminate slavery was a major cause of the United States’ rejection of traditional Protestant Christian understanding of natural law theory and its embrace instead of positivism and pragmatism. The unwillingness of the United States to deal with racism also created and maintained similar philosophical and practical problems with law. Today abortion poses the same threat to our legal system. It causes people to create inconsistencies in substantive and procedural aspects of the law, to distort reality, and to avoid arguing about the real issues.
While the outcome in Carhart is a positive outcome, it nevertheless does not really go far enough and does not escape the gravitational pull of the distortion that abortion causes to the time/space continuum of justice and law. It seems that escaping Roe v. Wade is almost like trying to escape a black hole. It remains to be seen if the Court can develop enough velocity to get away from its prior errors prior to the makeup of the Court being changed back to a more pro-abortion bent.
Justice Kennedy delivered the majority opinion for the Court. It was a 5-4 decision with Justices Kennedy, Roberts, Alito, Thomas, and Scalia voting to uphold the law, and Ginsburg, Stevens, Souter and Breyer dissenting in an opinion written by Justice Ginsburg. There was also an extremely short concurrence written by Justice Thomas with Justice Scalia joining in it, essentially saying that they believe that the Court’s abortion jurisprudence including Casey and Roe has “no basis in the Constitution.” While the case is a victory of sorts for those who are opposed to abortion, it is somewhat disturbing that Justices Roberts and Alito as well as Kennedy are unwilling to come to the same conclusion offered by Scalia and Thomas. What I would like to see from the Court is a simple opinion stating that the offspring of human beings are human beings and entitled to the respect due human beings at all stages of development. As a result, unborn human beings like those further along in development have a right not to be killed with malice of forethought and without justification or excuse. As a result, any reasonable regulation on abortion would be constitutional and the states’ practices in not limiting abortion would effectively be unconstitutional and on an equal protection basis since there is no reason for allowing the intentional termination of human beings at an early stage of development other than to save the life of another human being. In that way, Roe and Casey would be overturned and the absence of a right to abortion in the Constitution would not only be clear, but the presence of a fundamental right to life in all of jurisprudence would finally obtain the recognition it has so long wanted. But just as with slavery, jurisprudence is always distorted when one wants to pick and choose which human beings are entitled to treatment as human beings. It is much simpler and safer to treat them all essentially the same way.
Justice Kennedy’s opinion engaged in a fairly extensive review of the various types of abortion and the comments about them in the record. He noted that the Gonzales case was distinguishable from the prior Stenberg case in which Nebraska’s prior attempt to ban partial-birth abortion was overruled because it contained no protection for the life of the mother. After explaining the trial and Court of Appeal opinions in Carhart, Kennedy sets out to explain why the statute in question is not invalid. He notes that “the act punishes ‘knowingly performing’ a partial-birth abortion.” And then, contrary to the tradition of almost all courts discussing statutes limiting abortion, he actually parses the statute fairly, explaining what it actually means and concluding that the statute is not fatally vague or over broad. Kennedy notes, “The act does not restrict an abortion procedure involving the delivery of an expired fetus. The act, furthermore, is inapplicable to abortions that do not involve vaginal delivery.” He also notes that the act contains specific descriptions of anatomical landmarks so that it is simple to distinguish banned partial-birth abortion from every other type of abortion technique. There is no legitimate argument, according to Kennedy, that anyone should be confused about what this act really bans and what it does not. The act also requires an overt act to kill the baby. This is another safeguard for doctors that prevents them from being wrongly charged with a partial-birth abortion when that wasn’t really what they were undertaking. What Kennedy does not discuss is the elephant in the room. The elephant in the room in the partial-birth abortion case is the simple fact that the way a partial-birth abortion technique works, it is just as simple for a viable fetus to be delivered alive. In fact, it really is simpler. That is the reason why a partial-birth abortion is never necessary for the health of the mother. If the baby is too small to be viable, it can be removed through other techniques without any serious additional risk to the mother. If the baby is viable, it can be delivered alive and attempting to kill it during delivery does not make the procedure safer, but rather less so. This is completely ignored by the dissent that goes into all of the reasons why other types of abortion are less safe. And the dissent completely ignores the reality that delivering the baby alive is safer than any of the abortion methods or partial-birth abortion. The Supreme Court happily has never said that the so-called right to abortion involves the right to a dead baby. There is no reason why a baby that can be delivered alive can or should be killed by a physician. The woman may not want to raise the baby or be able to, but in that instance there are plenty of parents in the United States willing to adopt babies. If a baby can be partial-birth aborted, there is no reason why it cannot be born alive. But as I say, the Court fails to discuss this fact. Even now the Court is unwilling to directly address the simple realities of the case perhaps because of political correctness or the danger of looking politicized or foolish.
Another evidence of the Court’s reticence to face up to all of the realities of abortion is that Justice Kennedy’s opinion still does not clearly explain that the unborn baby human being is, in fact, a human being. He does say, “The act does apply both pre-viability and post-viability because, by common understanding and scientific terminology, a fetus is a living organism while within the womb, whether or not it is viable outside the womb.” It still puzzles me that everyone wants to use the Latin word for baby—fetus—to discuss unborn babies. It also seems strange to me that we want to refer to human beings in the womb as “life” rather than referring to them as human beings. I suppose part of this is to be delicate with the feelings of one’s opponents. But those opponents are in no way delicate or careful with those who have differing sentiments. It is true that arguments on political topics can be overly inflammatory. For example, the writings of William Lloyd Garrison in favor of abolishing slavery probably made the abolition of slavery more difficult because of the inflammatory nature. Nevertheless, one must face the reality of the thing in order to make good decisions about it. Referring to living unborn human beings as “potential life” or even “life” is still ignoring the real nature of the child. Doing so will distort our understanding of what we’re really talking about and is likely to continue to distort the making of public policy or the providing of justice.
Justice Kennedy also happily re-establishes contact with the Court’s normal jurisprudence about challenges to statutes. He correctly identifies the doctrine behind void for vagueness challenges: as generally stated, “the void for vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Kennedy asserts that the statute in the Gonzales case is intelligible to reasonable people. In his opinion, Kennedy properly notes that when vagueness does not clearly appear in the statute, the statute is normally entitled to the benefit of the doubt. The Court will be willing to consider an “as applied” challenge to a statute that shows why the statute is being unconstitutionally applied or interpreted in specific cases, but generally the Court does not speculate about how the statute might be misapplied or might be misunderstood in remote hypothetical situations. This is a happy change from other cases involving abortion in which the courts have bent over backwards to claim that there could be remote possibilities that someone might possibly misunderstand a statute regulating abortion rather than waiting for an actual misunderstanding to occur. Kennedy restores a happy balance by looking at the fact that the statute is meaningful and saying that if some abortionist really is prosecuted for doing another kind of abortion because the statute actually proves to be vague, he can then bring an “as applied” challenge. Until that time, the statute should be upheld. Obviously it is highly unlikely that such an “as applied” case will ever occur. Every prosecutor and every abortionist knows precisely what is banned by the Gonzales case. All of the attempts to void it for vagueness are simply argumentative techniques used by lawyers to try to maintain an absolute carte blanche where abortion is concerned.
It would have been nice if Kennedy had been able to overrule the prior Stenberg decision and say that the prior Nebraska ban on partial-birth abortion should have been upheld. But instead, he carefully distinguishes Carhart from Stenberg noting the major differences in the statute that make this statute much more clear and easy to understand. Kennedy even applies the actual canons of constitutional interpretation. He mentions the “canon of constitutional avoidance.” Kennedy says, “The canon of constitutional avoidance, finally, extinguishes any lingering doubt as to whether the act covers the prototypical D&E procedure (another type of abortion). The elementary rule is that every reasonable construction must be resorted to in order to save a statute from unconstitutionality… It is true this longstanding maxim of statutory interpretation has, in the past, fallen by the wayside when the Court confronted a statute regulating abortion. The Court at times employed an antagonistic ‘canon of construction under which in cases involving abortion, a permissible reading of the statute was to be avoided at all cost.’…by contrast (to Stenberg), interpreting the act so that it does not prohibit standard D and E as the most reasonable reading and understanding of its terms.” Three cheers for Justice Kennedy in applying the normal rule of canon of constitutional avoidance evenly. Abortion cases should not be entitled to the extraordinary treatment they have received.
Kennedy also discusses the findings by the Congress. He notes that there is evidence supporting their findings and allows them to be given the deference normally given to congressional findings and congressional intent. “Congress stated as follows, ‘implicitly approving such a brutal and inhumane procedure by choosing not to prohibit it will further coarsen society to the humanity of not only newborns, but all vulnerable and innocent human life, making it increasingly difficult to protect such life.’ The act expresses respect for the dignity of human life. Congress was concerned, furthermore, with the effects on the medical community and on its reputation caused by the practice of partial-birth abortion. The findings in the act explain: ‘partial-birth abortion…confuses the medical, legal, and ethical duties of physicians to preserve and promote life, as the physician acts directly against the physical life of the child, whom he or she had just delivered, all but the head, out of the womb, in order to end that life.’ …There can be no doubt the government has an interest in protecting the integrity and ethics of the medical profession. …Congress determined that the abortion methods it prescribed had a ‘disturbing similarity to the killing of a newborn infant,’ …and thus it was concerned with ‘drawing a bright line that clearly distinguishes abortion and infanticide.’” Kennedy believes that protecting the medical profession by drawing a bright line against infanticide and the congressional interest in protecting the life of the “fetus” are legitimate reasons behind the statute.
Not everything Kennedy says in the opinion is good. Not only are there problems with his omissions, but he does refer to the unborn baby as “the fetus that may become a child.” He also says “the state has an interest in insuring so grave a choice is well informed. It is self-evident that a mother who comes to regret her choice to abort must struggle with grief more anguished and sorrow more profound when she learns only after the event, what she once did not know: that she allowed a doctor to pierce the skull and vacuum the fast-developing brain of her unborn child, a child assuming the human form.” Again, this begs the question in the wrong way by implying that a human being at an appropriate form for its stage of development is somehow not in a “human form.” Quite to the contrary, unborn babies simply look like unborn babies are supposed to look at their appropriate stage of development. They are in the human form. It’s just a human form we’re not as familiar with seeing because it is usually hidden within the womb rather than easily available to our sight. But now with ultrasound and other imaging techniques, there is simply no excuse for maintaining the cloak of mystery over the unborn child that was present in pre-scientific eras.
Kennedy does have some insightful moments in his opinion. In other court opinions in which partial-birth abortion statutes have been found to be both overly broad and vague, the courts have failed to note that such findings are by implication inconsistent. Kennedy does not miss this though. He says, “There would be a flaw in this Court’s logic, and an irony in its jurisprudence, were we first to conclude a ban on both D&E and intact D&E was overbroad, and then to say it is irrational to ban only intact D&E because that does not prescribe both procedures. In some, we reject the contention that the congressional purpose of the act was to place a substantial obstacle in the path of a woman seeking an abortion.” Next in the opinion, Kennedy deals with the health exception question. He allows for the Congress’ findings as credible.
Again, Kennedy wisely follows the Court’s own jurisprudence in non-abortion cases. “The Court’s precedence instructs that the act can survive this facial attack. The Court has given state and federal legislatures wide discretion to pass legislation in areas where there is medical and scientific uncertainty…this tradition rule is consistent with Casey, which confirms the state’s interest in promoting respect for human life in all stages in the pregnancy. Physicians are not entitled to ignore regulations that direct them to use reasonable alternative procedures. The law need not give abortion doctors unfettered choice in the course of their medical practice. Nor should it elevate their status above other physicians in the medical community.” Three cheers for this uniform application of the law instead of giving abortion providers special privileges. Kennedy continues, “A zero tolerance policy would strike down legitimate abortion regulations, like the present one, if some part of the medical community were disinclined to follow the prescription. This is too exacting a standard to impose on the legislative power, exercised in this instance under the commerce clause, to regulate the medical profession. Considerations of marginal safety, including the balance of risks, are within the legislative competence when the regulation is rational and in pursuit of legitimate ends. When standard medical options are available, mere convenience does not suffice to displace them; and if some procedures have different risks than others, it does not follow that the state is altogether barred from imposing reasonable regulations. The act is not invalid on its face where there is uncertainty over whether the barred procedure is ever necessary to preserve a woman’s health, given the availability of other abortion procedures that are considered to be safe alternatives.” In other words, Kennedy takes a very sensible practical approach to the problem. Without being insulting to abortion providers by saying that they are willing to be disingenuous in order to keep performing any kind of abortion they wish, he indicates that even when there is some dissent in the medical community, the Congress is entitled to make findings about what they think is really necessary for health or safety or not. In a way, it would have been better if he had addressed the elephant in the room and noted that partial-birth abortions are never necessary because a living baby that is too large to be removed by other means can be more easily born alive than killed in mid birth. But I suppose that would not be fitting the decorum of a Supreme Court justice. Nevertheless, Kennedy’s opinion is still attacked by the dissent. The dissent, as we noted earlier, goes through all of the reasons why they believe partial-birth abortions might be safer than other abortion techniques. In doing so, the dissent also ignores the elephant in the room—the fact that a live birth is yet safer.
In abortion cases, the whole issue of “health” has been a misnomer. When people think of the health of the mother, they normally think that the mother is going to have some kind of injury or disease or syndrome as the result of giving birth to this baby. While all of that would be within the possible meaning of the term health, the way pro-abortion judges have used “health” is to describe a feeling of psychological well-being. In other words, if a woman thinks she will have apprehension or anxiety or stress because her baby is alive and living with adoptive parents, that is all of the “health risk” needed for the abortionist to make sure she has a dead child rather than a happy living one. That sort of a definition of health is extremely problematic. Yet the abortion industry and pro-abortion judges insist on this strange health idea.
In the last portion of the opinion, Kennedy focuses, as we noted before, on the fact that if there really are problems, the proper means of attacking the statute is an “as applied” challenge. He finally winds up the opinion by saying, “Respondents have not demonstrated that the act, as a facial matter, is void for vagueness, or that it imposes an undue burden on a woman’s right to abortion based on its over breadth or lack of a health exception. For these reasons the judgments of the Court of Appeals for the eighth and ninth circuits are reversed.” The abortion problem is still not solved but at least the Gonzales case is one more incremental step in the right direction. Lately there has been some dissention among organizations opposed to abortion as to whether or not incrementalism is appropriate. But it should be noted that incrementalism is being successful in some ways and has been successful historically. Slavery was eliminated in the United Kingdom incrementally. It was impossible to end the slave trade until the slave trade was first limited by making it easier for privateers and naval vessels to seize slavers. It was then possible to eliminate slavery when the slave trade had been eliminated for some period of time. Economic interest in favor of slavery had to be cut back and trimmed until they no longer held leverage over the legislature. In America, we were able to limit slavery quickly through the Civil War but at a terrible price in blood. It took us far longer to eliminate the horrible problem of racial discrimination and in fact, we are still suffering in some ways from that terrible blight on the human soul. We have made incremental progress toward the elimination of discrimination. I would like to see abortion ended completely by a Supreme Court opinion finding a right to life, or by an amendment to the Constitution clarifying a right to life for all human beings. If that is not politically possible, we need to continue to limit abortions, pressure abortion providers, and educate people so that abortion loses its economic, political, and demographic support enough to make a constitutional amendment possible. We also need to have bloggers, law schools, and other forms of education that affect lawyers, judges, and decision makers discuss this matter and educate people on how abortion really should be viewed and how it can be eliminated. Unless the proper canons of constitutional and statutory interpretation are taught, and unless people are willing to apply a proper natural law jurisprudence, it is unlikely that any set of judges or lawyers produced by the majority of law schools will argue or write the opinion necessary to end abortion in the United States. This is part of the importance of schools like Trinity.
Monday, July 23, 2007
Immunity from flying Immams?
Some months ago I wrote about the well known case of the “flying Imams” who engaged in outrageous behavior before and during a domestic airline flight. It is alleged that the Imams prayed loudly with praise for Osama Bin Laden, inveighed against the United States, spaced themselves throughout the aircraft at the same strategic spots chosen by the 9-11 hijackers, and demanded seatbelt extensions (a potential weapon) even though they did not need them. The Imams have waited, apparently for the statute of limitations on any counter-claim, and have sued those who complained about their terrorist-like behavior.
H. R. 1, the Homeland security bill, is currently being developed in the US House of Representatives. In response to the so called “flying imams” incident Congressman Peter King of New York has sponsored a bill that would amend HR 1 to give immunity from lawsuits to people who report apparent terrorist activities. The Democrats are opposing this immunity, and want to preserve the right of pro-Islamist organizations to chill the speech of would be reporters of suspicious activities. Some Democrats have tried to water down King’s language to make it useless. Others have sought to delete in altogether.
Defamation law suits are almost never financially worth while for the plaintiff, even if they win (which they rarely do). The law suits are expensive to defend however. Many ordinary people have no insurance or resources to cover the cost of a defamation law suit. If people believe they can be sued, there will be a tremendous chilling effect against speech to the authorities on possible terrorist actions. Defamation suits allow even real terrorists to exact a high price from those who truthfully expose them because a lawsuit for defamation could cost $100,000 in legal fees even though the defendant prevails in the end.
In the current situation it is important that citizens feel free to share what they see with law enforcement agencies without fear or hesitation. If malicious reporting occurs there are ways to deal with that apart from civil lawsuits. But the rare chance of malicious reporting is insignificant compared to the serious risk to life and limb from unreported terrorist actions.
(Hat tip to Dennis Pragger and Congressman Lundgren’s office)
Update: It looks like King's amendment will pass! http://www.centerforsecuritypolicy.org/
H. R. 1, the Homeland security bill, is currently being developed in the US House of Representatives. In response to the so called “flying imams” incident Congressman Peter King of New York has sponsored a bill that would amend HR 1 to give immunity from lawsuits to people who report apparent terrorist activities. The Democrats are opposing this immunity, and want to preserve the right of pro-Islamist organizations to chill the speech of would be reporters of suspicious activities. Some Democrats have tried to water down King’s language to make it useless. Others have sought to delete in altogether.
Defamation law suits are almost never financially worth while for the plaintiff, even if they win (which they rarely do). The law suits are expensive to defend however. Many ordinary people have no insurance or resources to cover the cost of a defamation law suit. If people believe they can be sued, there will be a tremendous chilling effect against speech to the authorities on possible terrorist actions. Defamation suits allow even real terrorists to exact a high price from those who truthfully expose them because a lawsuit for defamation could cost $100,000 in legal fees even though the defendant prevails in the end.
In the current situation it is important that citizens feel free to share what they see with law enforcement agencies without fear or hesitation. If malicious reporting occurs there are ways to deal with that apart from civil lawsuits. But the rare chance of malicious reporting is insignificant compared to the serious risk to life and limb from unreported terrorist actions.
(Hat tip to Dennis Pragger and Congressman Lundgren’s office)
Update: It looks like King's amendment will pass! http://www.centerforsecuritypolicy.org/
Wednesday, July 18, 2007
Foundational Law Quotes of History: John Calvin, set two
“To prevent anyone falling into error, let us therefore consider, in the first place, that man is under two kinds of government – one spiritual, by which the conscience is formed to piety and service of God; the other political, by which a man is instructed in the duties of humanity and civility, which are to be observed in an intercourse with mankind. They are generally, and not improperly, denominated the spiritual and temporal jurisdiction, indicating that the former species of government pertains to the life of the soul, and that the latter relates to the concerns of the present state, not only to the provision of food and clothing, but to the enactment of laws to regulate a man’s life among his neighbors by the rules of holiness, integrity, and sobriety. For the former has its seat in the interior of the mind, whilst the latter only directs the external conduct: one may be termed a spiritual kingdom, and the other a political one. But these two, as we have distinguished them, always require to be considered separately.
. . .
Nor let anyone think it strange that I now refer to human polity the charge of the due maintenance of religion, which I may appear to have placed beyond the jurisdiction of men. For I do not allow men to make laws respecting religion and the worship of God now any more than I did before, though I approve of civil government which provides that the true religion contained in the law of God be not violated and polluted by public blasphemies with impunity.
. . .
In short, if they remember that they [government office holders and officials] are the vice-regents of God, it behooves them to watch with all care, earnestness, and diligence, that in their administration they may exhibit to men an image, as it were, of the providence, care, goodness, benevolence, and justice of God.
. . .
The vice or imperfection of men therefore renders it safer and more tolerable for the government to be in the hands of the many, that they may afford each other mutual assistance and admonition, and that if any one arrogate to himself more than is right, the many may act as censors and masters to restrain his ambition.
. . .
[N]o kind of government is more happy than this where liberty is regulated with becoming moderation and properly established on a durable basis, so also I consider those as the most happy people who are permitted to enjoy such a condition.
. . .
[T]he magistrates likewise ought to apply their greatest diligence, that they suffer not the liberty, of which they are constituted guardians, to be in any respect diminished, much less violated.
. . .
[A]ll laws are preposterous which neglect the claims of God and merely provide for the interests of men.
. . .
These things evince the folly of those who would wish magistrates to neglect all thoughts of God, and to confine themselves entirely to the administration of justice among men, as though God appointed governors in his name to decide secular controversies, and disregarded that which is of far greater importance-the pure worship of himself according to the rule of law.
. . .
[I]n the infliction of punishments the magistrate does not act at all from himself, but merely executes the judgments of God . . . to avenge the afflictions of the righteous at the command of God is neither to hurt nor to destroy.”
. . .
Nor let anyone think it strange that I now refer to human polity the charge of the due maintenance of religion, which I may appear to have placed beyond the jurisdiction of men. For I do not allow men to make laws respecting religion and the worship of God now any more than I did before, though I approve of civil government which provides that the true religion contained in the law of God be not violated and polluted by public blasphemies with impunity.
. . .
In short, if they remember that they [government office holders and officials] are the vice-regents of God, it behooves them to watch with all care, earnestness, and diligence, that in their administration they may exhibit to men an image, as it were, of the providence, care, goodness, benevolence, and justice of God.
. . .
The vice or imperfection of men therefore renders it safer and more tolerable for the government to be in the hands of the many, that they may afford each other mutual assistance and admonition, and that if any one arrogate to himself more than is right, the many may act as censors and masters to restrain his ambition.
. . .
[N]o kind of government is more happy than this where liberty is regulated with becoming moderation and properly established on a durable basis, so also I consider those as the most happy people who are permitted to enjoy such a condition.
. . .
[T]he magistrates likewise ought to apply their greatest diligence, that they suffer not the liberty, of which they are constituted guardians, to be in any respect diminished, much less violated.
. . .
[A]ll laws are preposterous which neglect the claims of God and merely provide for the interests of men.
. . .
These things evince the folly of those who would wish magistrates to neglect all thoughts of God, and to confine themselves entirely to the administration of justice among men, as though God appointed governors in his name to decide secular controversies, and disregarded that which is of far greater importance-the pure worship of himself according to the rule of law.
. . .
[I]n the infliction of punishments the magistrate does not act at all from himself, but merely executes the judgments of God . . . to avenge the afflictions of the righteous at the command of God is neither to hurt nor to destroy.”
Monday, July 16, 2007
Darwinism's Skeletons in the Closet
The Weekly Standard's web site has a great article at the link above on the text book involved in the famous Scopes evolution trial.
As the article points out, the dark legacy of early Darwinist literature was racism. If different groups of people evolved separately some might be more evolved than others or "fitter" than others. That notion fit in well with paternalistic, segregationist, imperialist, and eugenic ideas that were wrong and all too common in the pre-war (WW II) west. Evolution has not been the font of human rights. Instead, it is belief in the idea that all humans were literally "created equal" - as the same kind of thing, with equality before God and the law - that has been the basis for historic recognition of human rights.
As the article points out, the dark legacy of early Darwinist literature was racism. If different groups of people evolved separately some might be more evolved than others or "fitter" than others. That notion fit in well with paternalistic, segregationist, imperialist, and eugenic ideas that were wrong and all too common in the pre-war (WW II) west. Evolution has not been the font of human rights. Instead, it is belief in the idea that all humans were literally "created equal" - as the same kind of thing, with equality before God and the law - that has been the basis for historic recognition of human rights.
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