Archive for June, 2007


Interview With Professor Russell Hittinger


ROME, MAY 4, 2007 ( Beyond mere policy, Catholic social doctrine seeks to clarify the proper order and harmony among societies, says a Catholic author and professor.


Russell Hittinger, the William K. Warren Professor of Catholic Studies and a research professor of law at the University of Tulsa, spoke Wednesday at the “Foundations of a Free Society” conference organized by the Acton Institute, held at the Pontifical Lateran University.


Hittinger discusses the history of Catholic social doctrine, starting with Pope Leo XIII, up to Benedict XVI’s most recent contribution to the body of knowledge in “Deus Caritas Est.”


Hittinger’s most recent book is “The First Grace: Rediscovering the Natural Law in a Post-Christian World.”


Q: Can you explain the seminal role Pope Leo XIII played in shaping what we now know to be Catholic social doctrine?


Hittinger: Pope Pius XI [1922-1939] is the first Pope to speak of social doctrine as a unified body of teachings that develop by way of clarity and application.


In “Quadragesimo Anno,” Pius XI said that he inherited a “doctrine” handed on from the time of Leo XIII. By any measure, it is a prodigious tradition.


Beginning in 1878 with the election of Leo XIII, Popes have issued more than 250 encyclicals and other teaching letters; roughly half are related, broadly, to issues of social thought and doctrine. No government, no political party, no encyclopedia or university has produced such a continuous and voluminous tradition of social thought.


Leo XIII himself wrote some 100 teaching letters.


Why did he write so many encyclicals? The short answer is the collapse of Catholic political Christendom and the rise of the new secularist states in the 19th century.


To be disinherited politically was a traumatic event for European Catholics. Leo XIII understood the need to respond in a measured and reasonable manner.


Throughout the world Catholics looked to the papacy to provide leadership lest Catholicism become divided by the new nation-states.


To his credit, Leo XIII rose to the occasion. Leo XIII saw that he needed to supply not only juridical but also intellectual leadership.

His teachings proved successful because he was ready to ascertain what is open or closed in the secular mind, and to use the right mixture of dialectics and systematics to move the latter toward the former.


He gave Catholics a sophisticated body of thought about social issues that transcended what could be called simple statements of “policy.”


His efforts also proved successful because his lengthy pontificate was the seedbed for future Popes; hence emerged a remarkably well-structured, yet quickly evolving body of social doctrine.


Q: Pope John Paul II’s encyclical “Centesimus Annus” was written on the 100th anniversary of Pope Leo XIII’s encyclical “Rerum Novarum.” What elements from Leo XIII’s encyclical are still relevant 100 years later? What developments in the encyclical were unique to John Paul II?


Hittinger: Like every subsequent Pope, John Paul II expressed his admiration and profound gratitude for the Leonine project. By my count, the world in which John Paul II came of age went through three deep changes.


First, after World War I: Nation-states were profoundly demoralized by the war, and this demoralization became fertile soil for the rise of totalitarian regimes that Leo XIII could have scarcely imagined.


Second, after World War II: Europe and her former colonies around the world undertook a painful and searching re-evaluation of their respective domestic orders, and the international order.


During these years, when Father Karol Wojtyla was a young priest, he saw the beginning of the human rights movement, the beginning of European Union, and both the hopes and disorders which followed upon decolonization.

Third, the revolution in Central and Eastern Europe that ended the Cold War: “Centesimus Annus” is John Paul II’s grand narrative and philosophical analysis of all these changes.


To be sure, the Leonine principles are quite evident, but John Paul II deals with the crises of the 20th century.


I encourage people to read both encyclicals because the entire modern history of the Church is encompassed by the lives of Leo XIII and John Paul II.


The former was born in 1810, at the zenith of Napoleon’s power, and the latter was born just a decade after Leo XIII’s death, and brought the Church into the new millennium.


Q: Benedict XVI’s encyclical “Deus Caritas Est” has elements of a social encyclical. In what ways does he follow “Centesimus Annus”? Does he bring a new perspective to Catholic social doctrine?


Hittinger: “Deus Caritas Est” perhaps does not break entirely new ground in social teaching. But it surely reiterates and makes more clear that the mission of the Church is not to be confused with the state and the other temporal instruments of social justice.


Benedict XVI was, of course, familiar with the problem, which surfaced acutely in certain strands of liberation theology. As the prefect of Congregation for the Doctrine of the Faith, Cardinal Joseph Ratzinger had written clear and careful instructions on this subject.


From one point of view, the second half of “Deus Caritas Est” continues the standing magisterial admonitions about turning the Church into a mere instrument of politics and the quest for justice.


Beyond the specific questions surrounding liberation theology, however, Benedict XVI wanted to remind us that while the Church teaches and promotes social justice, Christ gave the Church a very specific mission in the order of charity.


The integrity of this mission must be protected. And at a minimum, this means not confusing it with the ordinary objects and ends of civil governance.


Q: You spoke recently at the Acton Institute event “The Foundations of the Free Society” in Rome. How is the exercise of virtue important in building a free and just society?


Hittinger: The natural, acquired virtues and the supernatural virtues are like spiritual muscles, disposing the intellect and the will to achieve their proper objects — namely, the true and good.


Some levels of justice and love are achievable with a minimum of virtue, but such achievement will not last for long without it. Any one who has married and raised children understands this point. So, too, does any superior of a religious order or congregation.


The first stirrings of truth and love provide an initial thrust toward right order. But without virtue they will turn out to be like seeds thrown on rocky soil.


Today there is a tendency to believe that right order ensues merely from arranging a rational set of incentives, as though truth and love were the products of a system.


Whatever “system” contains real human persons — polities, markets, education, families — it cannot succeed without the internal perfections of its members.


Q: Additionally, at the Acton Institute event, your lecture was entitled: “Societies as Persons in Social Doctrine.” You argued that societies can be defined as a person. What do you mean by this and what ramifications does it have for Catholic social doctrine?


Hittinger: It should be obvious that social teaching presupposes that there is such a thing as society.


Indeed, there are many different kinds of society. Some are natural, in the sense that human life is either impossible or very difficult without them. In the older tradition common to philosophers, theologians and jurists, the family and the polity counted as natural societies.


Other societies are voluntary, such as clubs, sodalities, faculties, corporations and so forth. The Church is a supernatural society, though it has aspects of both natural and voluntary societies.


In her social doctrine, the Church has repeatedly insisted that we must carefully note the different objects and ends and modes of unity of these societies.


How can we do justice if we don’t appreciate these differences?


For example, how can we do justice to a matrimonial society if we treat it the same as a temporary economic partnership? How can we do justice to a religious congregation if we treat it no different than a chess club?


I call societies “persons” in a restricted but important sense. A society is the bearer of rights and responsibilities that are not reducible to the aggregation of its members. The rights-and-duties bearing unity called a “society” is a subject of moral appraisal.


In the moral sense of the term, a society can harm and be harmed. In “Centesimus Annus,” No. 13, this is what John Paul II meant by the “subjectivity of society.”


He simply meant that a society is something more than mere intersubjectivity; rather, it constitutes a “subject” in its own right. All of us belong to more than one society.


Catholic social doctrine seeks to clarify the proper order and harmony among societies.

Professor Douglas Kmiec Analyzes the Court’s Decision


MALIBU, California, MAY 3, 2007 ( The U.S. Supreme Court’s recent decision to uphold a federal partial-birth abortion ban may be the necessary precedent to validate future laws defending life, according to an expert on family law.


For the first time since the Roe v. Wade decision in 1973, the U.S. Supreme Court has upheld a ban on a specific type of abortion.


For an in-depth analysis of this decision, ZENIT turned to Douglas Kmiec, professor and Caruso Family Chair in Constitutional Law at Pepperdine University, and a former justice department official and dean of the law school at Catholic University of America.


Q: First of all, can you tell us what the Supreme Court actually held in Gonzales v. Carhart?


Kmiec: Carhart upheld a nationwide ban on partial-birth abortion enacted by Congress as the Partial-Birth Abortion Ban Act of 2003.


Partial-birth abortion involves the near completed delivery of an intact child only to intentionally puncture the child’s skull for purposes inflicting death by suctioning out the brain.


The Supreme Court found the state of Nebraska’s ban of this gruesome procedure too vague to be enforceable, and lacking a health exception.


Congress tightened up the language and supplied an exception for life, but not for health. Responsible medical testimony found the procedure to be “never medically necessary” and fraught with its own health risks.


In its latest ruling, the court conceded that the need for a health exception was contested. Nevertheless, in spite of that medical uncertainty, the court found there was no basis to invalidate the law in its entirety.


Rather, the presumption should be in favor of the law’s enforcement, leaving the door ajar just a bit should an unusually rare medical condition be specifically demonstrated to medically require the procedure.


In general, said the court, the federal restriction was perfectly valid since “the government has a legitimate and substantial interest in preserving and promoting fetal life.”


Notwithstanding a great deal of hyperbole in the general press, Carhart is a faithful application of the earlier Casey precedent and it reaffirms that the states “retain a critical and legitimate role in legislating on the subject of abortion…. The political processes of the state are not to be foreclosed from enacting laws to promote the life of the unborn and to ensure respect for all human life and its potential.”


In this particular case, this meant that Congress did not need to supply a generally applicable health exception to the ban of a procedure that the Congress found was “never medically necessary.”


The court did not necessarily accept that congressional finding; instead, it provided that any woman who believes she is facing a unique health challenge may make an individualized challenge to the ban on that case-by-case basis.


Q: There is some debate over whether Gonzales v. Carhart was a narrow decision that upheld a congressional law banning a specific abortion procedure or whether it completely changed the legal landscape of abortion. What is your assessment?


Kmiec: While only vindicating a ban of one notably ugly procedure, the ruling is important for the insight it supplies about the new “Roberts Court.” Especially relevant is the extent to which the court chose to highlight the profound social injury that abortion represents to motherhood.


Writing for the court majority — which included Chief Justice John Roberts and Justices Samuel Alito, Clarence Thomas and Antonin Scalia — Justice Anthony Kennedy affirmed that “respect for human life finds [its] ultimate expression in the bond of love the mother has for her child.”


Acknowledging abortion to be a painful and difficult moral decision, the court pronounced that it would be “self-evident” for any mother to regret her choice to abort. The majority speculated that this pain would be far greater if the law had permitted a doctor to engage in the shocking killing of a child partially born.


From the technical perspective of the law’s development, Carhart is important in a number of respects that will increase the likelihood that abortion regulation beyond this one procedure will be upheld in the future.


First, it is an elementary rule that “every reasonable construction must be resorted to in order to save a statute from unconstitutionality.”


Prior to Carhart, this basic principle of law and judicial humility was nevertheless disregarded in abortion cases. It was almost as if abortion legislation was presumed invalid, rather than valid. Carhart seems to change this giving more presumptive validity to abortion laws generally.


Second, the court made it harder to make what lawyers call a “facial” challenge to an abortion law. A facial challenge claims that a law cannot be constitutionally applied in any circumstance. The Carhart decision held that facial attacks are not the preferred means of constitutional adjudication.


In saying this, the court was mitigating some of the confusion caused when the court seemingly departed from the “heavy burden” that is typically placed upon parties that seek to strike a legislative enactment in its entirety.


The normal rule — outside the abortion context — was that those making a facial challenge to a statute must show that no set of circumstances exists under which the act would be valid. The court did not return completely to this normal rule in Carhart, but it edged closer to it.


Q: One of the more interesting aspects of the case is that it appears to resurrect the idea that a state has a moral interest in protecting fetal life. Does Gonzales v. Carhart allow legislatures to justify abortion regulations on the basis that some practices are immoral or inhumane?


Kmiec: Yes, to a point. Carhart held that it was legitimate for Congress to conclude that “ethical and moral concerns” justified the special prohibition of a procedure that Congress determined bore a “disturbing similarity to the killing of a newborn infant.”


Nevertheless, caution is appropriate here. The court still relied upon the ban not constituting a substantial obstacle or undue burden on the women’s decision.


Thus, while moral considerations were important here insofar as they supplied the rational basis for congressional action, the court is not indicating that it will accept moral considerations as sufficient to outweigh a woman’s decision generally.


Q: Justice Ruth Bader Ginsburg’s dissent vehemently criticized Justice Kennedy’s recognition of the negative effects of abortion on women, and that some women come to regret their abortion. Will this recognition influence future pro-life efforts?


Kmiec: Justice Kennedy has been wrongly criticized. The dissent suggests he is relying upon archaic stereotype or that he assumes women are “too fragile” to digest accurate descriptions of abortion procedures.


In truth, Justice Kennedy is respecting — not subjugating — the judgment of the woman when he posits that if she is properly informed, she would be less likely to choose abortion. There is no necessary identity between a woman choosing to have an abortion and intelligence.


Indeed, it is the state’s assumption that the rational woman will forgo an abortion when she has all the facts. Justice Kennedy said: “the state’s interest in respect for life is advanced by the dialogue that better informs … expectant mothers … of the consequences that follow from a decision to elect a late-term abortion.”


Dissenting, Justice Ginsburg and her fellow dissenters — Justices John Paul Stevens, Stephen Breyer, and David Souter — characterized the abortion right as essential to a woman’s autonomy and her “enjoyment of equal citizenship.” Why a woman’s equality could be claimed to depend upon the option of destroying the life of her child is unexplained.


Indeed, Justice Ginsburg comes very close to equating the protection of unborn children to abusive behavior toward women. Seemingly to refute the “bond of love” between mother and child noted by the majority, Justice Ginsburg emphasizes unwanted pregnancies and the daily incidents of sexual assault.


This is a non sequitur. Proscribing an inhuman abortion practice does not reimpose “discredited notions about women’s place in the family and under the Constitution,” nor does it condone domestic abuse.


Justice Ginsburg is right, of course, that at one time — a half century or more ago — the law rather exclusively highlighted “the destiny and mission of women to fulfill the noble and benign offices of wife and mother.”


America can and should still celebrate these as noble callings. Nothing about protecting unborn life, however, requires that they be the only vocational choices of a woman.


What was the Supreme Court’s greatest gift of insight in Carhart? It was the rejection of the pernicious idea that women can only achieve by standing upon the graves of their unborn children.


Q: Some critics of the decision say it was a case of five Catholic justices imposing their morality on the nation. How do you see it?


Kmiec: This is a canard.


What should determine the abortion question — for Catholic or non-Catholic judges — is whether the claimed right can legitimately be said to be consistent with the premise of an “unalienable right to life” in the Declaration of Independence — America’s document of incorporation as a nation — and the history, tradition and practices of the people which inform the definition of the word “liberty” in the 14th amendment.


If abortion is inconsistent with either, it is questionable — as a constitutional or legal matter — irrespective of one’s faith tradition. Notwithstanding abundant science and common observation, the beginning of life remains contested, of course, in the population at large.


Given this claimed disagreement, it may well be that only the people through their legislative choices can decide it. If that is so, it is sound constitutional jurisprudence for judges of any or no faith to permit the legislative voice to be heard.


Of course, it is for Catholics to bring to bear on that discussion the Catholic teaching on the sacredness of all life from the moment of conception.


It is wrong to think morality is irrelevant to the adopted law. If moral considerations informed the original constitutional text or statutes adopted under it, then the morality that has been incorporated into the law is and ought to be respected since it has been adopted by the people — as law, not faith.