Mirror of Justice

Maritain on the Person, State, and Community

This essay, in First Things (Christopher Shannon, "Catholicism as the Other") includes an interesting discussion of Maritain's book, The Person and the Common Good, which -- I think -- cuts to the core of a lot of the discussions we have on this blog. I was particularly interested in this passage:

. . . Like so many thinkers of his time, Maritain sought a third way between authoritarian statism and laissez-faire individualism. Rooted in Thomist philosophy, the category of the person provided Maritain with a language through which to refute Catholic supporters of fascism as well as secular liberal defenders of a purely instrumental social order. In The Person and the Common Good, Maritain writes of the human person as “a spiritual totality” that exists in relation to a “transcendent whole.” This relation renders the human person “superior to every value of mere social utility,” in dignity and worth “superior to all temporal societies.” In even stronger language, Maritain insists that “with respect to the eternal destiny of the soul, society exists for each person and is subordinated to it.”

. . . Still, the person is not simply an individual with a spiritual dimension. The inviolability of the person does not make him the primary purpose or end of the social order. Maritain affirms the dignity of the person only in the context of a relation of mutual and reciprocal subordination. Though superior to mere utility, a human life is less precious than the moral good and the duty of assuring the salvation of the community, is less precious than the human and moral patrimony of which the community is the repository, and is less precious also than the human and moral work which the community carries on from one century to the next.

. . . I know of no clearer statement of the Catholic understanding of the place of the human person in society. I know of no clearer challenge to the expressive individualism propagated by contemporary multiculturalism. In Maritain’s time, and our own, Catholicism—not race, class, gender, ethnicity, or sexuality—has stood as the most serious Western cultural alternative to American individualism. A minority social ethic in the modern West, this Catholic communalism is, moreover, a particular instance of a majority ethic that has characterized most human societies throughout history. By the standards of world history and culture, the individual, not the community, is the category in need of justification."

Rick

Interesting "New Urbanism" Essay

Thanks to Stuart Buck for pointing me to this interesting review essay, "Lawless Prophet: James Howard Kunstler and the New Urbanist Critique of American Sprawl." Here's the conclusion:

"We need to rethink an eschatology that is not over-influenced by the privatized image of the American dream or by the Edenesque longing for virgin wilderness. We need an eschatology that takes human community (and its built form) seriously. The churches we build, the houses we live in, the stores at which we shop, and the important spatial connections between all these things represent a form of proclamation that we can no longer ignore. It is time for the church to develop a theology of place that can adequately respond to the Geography of Nowhere."

I tend to share the New Urbanists' aesthetics -- that is, I prefer the "look" of, say, Burlington or Alexandria or Lawrence to that of, say, Reston or Overland Park. I tend to agree with one of the key premises of the anti-suburban critics, namely, that the layout and design of the places in which we live shapes, in important ways, our culture and our souls. At the same time, critics like James Kunstler -- like many in the anti-sprawl camp -- are maddeningly snide and elitist. Too often, one suspects that the opposition to Wal-Mart is as much about cultural snobbery as it is about Jane Jacobs' wisdom. At the same time, I remind myself, the tedious smugness of some sprawl critics should not blind us to the facts that (a) "sprawl" has downsides, both cultural and aesthetically, and (b) "sprawl" might be a result of misguided policy choices -- or, of policy choices with unintended effects -- as much as a reflection of citizens' choices.

In any event, this review essay is worth checking out.

Rick

CST Economics: Swedes Proving What?

There's nothing like a post from Steve to rouse me from my administrator's doldrums, particularly when he starts to channel his (self-described) "hero," Michael Novak, on Catholicism and economics. I always hesitate to take Steve on because he is so smart (the exercise of prudentia) and because he is such a nice guy (the exercise of caritas), but, as he knows, he's pushing my buttons with this one -- I knew I'd pay for that "outlier" remark. In any event, here's my response to a couple of his recent posts.

First, a "Swedish" study? I'm instantly suspicious: remember the old right wing syllogism: Sweden leads the world in suicide; Sweden is socialist; therefore socialism stinks. I always thought it was the weather and the diet of pickled herring.

Second (and more seriously). I'm trying to figure out what this study proves about: (i) the comparative merits of American-style capitalist economics and European-style social democracy; (ii) what style of economics CST should favor. With respect to the first question, the study (which I have not looked at closely) seems to suggest that Americans in general have more stuff than Europeans, and that there is more equality in the US because American poor people have more stuff than European poor people. I'm no welfare economist, but my impression is that this is a very rose-colored picture. First of all, it fails to take into account the social costs of consumption that Rob pointed out. This has been a great theme of JPII. His problem with western capitalism is not that it is crushing labor (the 19th c. Catholic concern), but that it is promoting an idolatry of the material, an endless, soul destroying lust for more stuff. So maybe having more stuff is not so good! The Pope certainly has recognized the virtues of capitalist entrepreneurship, but he is distinctly aware that the creation of wealth can have very perverse spiritual effects. Second, I don't know about those equality figures -- certainly the picture is at best much more uneven. In the last 15 years or so wealth has become more concentrated at the top; the bottom is poorer and the middle and lower classes are more and more vulnerable to increasing debt burdens and slippage of social and economic status with little safety net (See Sullivan, Warren & Westbrook, "The Fragile Middle Class: Americans in Debt"). Third, is the "quality" of poverty really better here? Sure, lots of poor people in the US have (relatively cheap) TVs, (maybe) bigger apartments and crummy old beaters, but they lack health insurance, access to decent child care, schools and housing. The working poor--forget welfare--can barely sustain a living. For anecdotal evidence of that, take a look at Barbara Ehrenreich's "Nickel and Dimed," to get a sense of the desperate condition of people who actually have jobs and try to work for a living. I'm sure if we looked at things such as infant mortality, literacy, and other quantifiable factors, (not to mention racial disparities!) we would find that the life of the poor in the US can be genuinely brutal, and worse than that of the poor in Western Europe. I don't think there is really all that much to be complacent about when we talk about US capitalism and the amelioration of poverty. We are still talking about some pretty "savage inequalities", as one commentator whose name I've forgotten has put it.

Leaving aside the question of whether the Swedish study fully reflects both the social costs (Rob's point) or the level of inequality in the US (my point), there is a larger question about the reassurance Steve seems to draw from it. This study (as well as Steve and Novak) seems preoccupied with an old battle. Their old battle is the one against "socialism" or "European-style social democracy", sometimes referred to more generically as "statism" as a kind of omnibus category. And the argument seems to be that capitalism has created more wealth for EVERYBODY, and not just the capitalists, than any form of state organization of the economy that ever existed (most notably, Soviet communism and the different types of socialism.) From a Catholic perspective, Novak and Steve would argue, capitalism is much better because it preserves liberty (essential to the dignity of the human person) and, because of its wealth-creative force, it is much better for the poor than any state-sponsored attempts to redistribute wealth or restrain entrepreneurial energies. Steve apparently is claiming that the Swedish study vindicates both claims: American-style capitalism produces both more wealth and less inequality. Having addressed the question of whether the study actually does prove the latter point, I want to address more broadly the way Steve has framed the question.

First, forget socialism and social democracy as betes noirs. To a large extent, they are yesterday's news. It's also not news that American style capitalism produces more wealth than socialism and most social democratic regimes. The question is how uncritically we should embrace American-style capitalism. How should we should think about what the process of capitalist creative destruction costs in human terms, and whether there is any way --governmental or private -- that the costs can be mitigated? European social democracy was an attempt to take those human costs into account, and was often inspired by the CST tradition. Can that experiment suvive in the face of brutal global competition? Maybe not, but that is no reason to assume that the struggle to ameliorate the inequalities still produced by capitalism in its global form should be abandoned. Whether that struggle will gravitate toward European-style social democracy I don't know, I don't think the Swedish study establishes that the wealth creative effects of capitalism are significant enough to eliminate the need to deal with the profound inequalities that capitalism can generate.

Second, the "Leviathan" that Novak inveighs against is the state. But, today, the state looks weaker than ever. Besides the disintegration of states in what used to be called the third world, and the vulnerability of great nation states to terrorist NGOs, we see the massive power of multinationals -- particularly international finance -- to influence world affairs and the fate of the most impoverished peoples on earth. I suppose the old difference between left and right remains: Which Leviathan do you fear most -- the State or Capital?

Third, it is the note of triumphalism in Novak (and, I fear, in Steve's post on this topic) that troubles me the most, and which I find does not resonate with the CST tradition. To look at capitalism as a relatively unmixed blessing ignores its character as a human institution which, as Steve has pointed out, must be "fallen." It creates wealth and destroys wealth. It enriches the poor but creates more poverty. Capitalist economies are richer than command economies and (maybe) their poor are better off than other poor, but they still generate inequalities deeply inimical to human dignity. Statist solutions are not necessarily any better -- in the effort to redistribute wealth they may reduce aggregate wealth and simply enrich powerful interest groups. But CST does not tell us that the "preferential option for the poor" and the positive rights needed to preserve human dignity can be established simply by letting corporations do what they do best. Yes, the "poor will always be with us." The question is what we as Catholic Christians should do about it.

I'll conclude by countering Steve's Swedes with a couple of Italian economists, Stefano Zamagni and Luigino Biondi, economists whose Catholic-inspired thinking about the "economy of communion" offers an interesting alternative to our usual sharp antitheses.

Symposium on Criminal Punishment

The Notre Dame Journal of Law, Ethics, and Public Policy has published its "Symposium on Criminal Punishment," 18 Notre Dame J. Law, Ethics & Pub. Pol'y 303-646 (2004). The volume includes essays by George Fletcher ("Punishment, Guilt, and Shame in Biblical Thought"), Christian Brugger ("Aquinas and Capital Punishment"), Daniel Robinson ("Punishment, Forgiveness, and the Proxy Problem"), Kyron Huigens ("On Aristotelian Criminal Law"), Stuart Green ("Moral Ambiguity in White Collar Criminal Law"), and many others. I regret that I do not have links to the essays themselves, but I've had the chance to look over many of them, and highly recommend the volume. We at Notre Dame are very proud of this journal, and of its excellent student staff.

Rick

SS. John Fisher and Thomas More

Today is the feast day of Saints John Fisher and Thomas More. Bishop Fisher was one of the (relatively few) bishops who refused to take the oath of succession which acknowledged the issue of Henry and Anne as the legitimate heir to the throne, and he was imprisoned in the Tower in April 1534. It is reported that, shortly before his execution, Fisher opened his New Testament to the following words from St. John's Gospel: "Eternal life is this: to know You, the only true God, and Him Whom You have sent, Jesus Christ. I have given You glory on earth by finishing the work You gave me to do. Do You now, Father, give me glory at Your side". Closing the book, he observed: "There is enough learning in that to last me the rest of my life."

Just a few days later, Thomas More was convicted of treason. He reportedly told his judges that "we may yet hereafter in heaven merrily all meet together to everlasting salvation." On the scaffold, he famously told the crowd that he was dying as "the King's good servant-but God's first."

A few years ago, Pope John Paul II proclaimed Thomas More the patron saint of politicians and statesmen.

Rick

Quick Response to Rob's Post

In response to Rob's argument about the moral costs of consumption, consider that not only is the US ahead of Europe on key quality of life measures, the US is also way ahead on virtually all measures of religiosity:

What the best available empirical research reveals is that secularization is unambiguously observable in most of Western Europe, but not in the United States. In fact, religion remains remarkably strong in the United States. For instance, more than 95 percent of Americans claim to believe in God or a universal spirit or lifeforce, compared to 61 percent of the British; nearly 80 percent of Americans claim to believe in heaven, compared to 50 percent of the British; 84 percent of Americans believe that Jesus is God or the son of God, compared to 46 percent of the British (Gallup and Lindsay 1999). Comparing additional traditional religious beliefs, over 70 percent of Americans believe in life after death, compared to 46 percent of Italians, 43 percent of the French, and 35 percent of Scandinavians (Gallup 1979). And over 70 percent of Americans believe in bell, compared to only 28 percent of the British (Greeley 1995). Concerning traditional religious participation, nearly 45 percent of Americans attend church more than once a week, compared to 23 percent of Belgians, 19 percent of West Germans, 13 percent of the British, 10 percent of the French, 3 percent of Danes, and only 2 percent of Icelanders (Verweij, Ester, and Nauta 1997).

The question of why this disparity exists is hotly debated, but consider this partial explanation:

A third consideration involves the possible impact of different social welfare systems. Perhaps when the government takes a greater role in providing social services, religion wanes, and when the government fails to provide extensive social services, religion thrives. For instance, religious belief and participation is the absolute lowest level in Scandinavia, whose countries are characterized by generous social support and extensive welfare systems. In contrast, the United States government offers far fewer social services and welfare programs than any European nation.

So social democracy may not only be a bad idea for one's pocket book; perhaps it is also a bad idea for one's soul.

CST Economics: The Cost of Consumption

I am not even an amateur economist, nor do I quibble with the fact that higher per capita GDPs are a good thing. I do, however, feel obliged to point out that much of the evidence of America's supremacy over Europe in terms of wealth creation (see Steve's post below) has come at a substantial moral cost to Americans themselves. Besides reflecting the degree to which technological conveniences have become standard to the American way of life (even among the poor), the rates of ownership of televisions, cars, air conditioning, etc., along with the square footage of our homes, all provide a sense of the degree to which the consumer culture has found its ultimate expression in modern American life. Given the vastly lower percentage of poor and middle-class Americans who have health insurance, save for college, or save for retirement, I'm not sure that the nearly universal ownership of televisions is a good thing. And I'm doubtful that the rise in square footage of the average home is a positive indicator of a family's overall health, given the corresponding need of both parents to work outside the home in order to make mortgage payments. (I'd be interested in seeing the US-EU comparison of per capita personal debt levels.) If both parents need to be working, I think that the European tendency to ensure paid parental leave after a child's birth is more vital to the health of the family than the square footage of the American home to which the nanny is welcomed every day.

I'm not challenging Steve's characterization of the study's relevance, and I do not suggest we embrace the obviously flawed model of the European social welfare state. But I do think we need to resist any temptation to judge the health of a society (even economic health) solely by measures that feed into culturally destructive habits. In this regard, I was reminded of David Hart's article, Freedom and Decency, in the current First Things (the article is not available on-line). He wrote concerning our society's insistence that censorship is utterly incompatible with freedom. I think his words also apply to the market economy:

A society is just precisely to the degree that it makes true freedom possible; to do this it must leave certain areas of moral existence to govern themselves, but it must also in many cases seek to defeat the most vicious aspects of fallen nature, and to aid as far as possible in the elevation in each soul of right reason over mere appetite and impulse -- which necessarily involves denying certain persons the things they want most. . . . When appetite seizes the reins of the soul or the city, it drives the chariot toward ruin; so it is the very art of sound governance to seek to perfect the intricate and delicate choreography of moral and legal custom that will best promote the sway of reverent reason in city and soul alike.

. . . . The ultimate consequence of a purely libertarian political ethos, if it could be taken to its logical end, would be a world in which we would no longer even remember that we should want to choose the good, as we would have learned to deem things good solely because they have been chosen.

Rob

CST Economics: Prudential Considerations

Our Lord taught that "You always have the poor with you ...." Even so, Catholic Social Teaching commands that we have a preferential option for the poor. Yet, as I understand CST, it leaves many of the policy decisions relevant to how we ameliorate the status of the poor to prudential judgment rather than magisterial teaching.

In making those prudential judgments, we need to consider a new Swedish study - reported at OpinionJournal.com - assessing the relative merits of European-style social democracy versus Anglo-American democratic capitalism.

The growing split between the U.S. and Europe has been much in the news, mostly on foreign policy. But less well understood is the gap in economic growth and standards of living. Now comes a European report that puts the American advantage in surprisingly stark relief.

The study, "The EU vs. USA," was done by a pair of economists--Fredrik Bergstrom and Robert Gidehag--for the Swedish think tank Timbro. It found that if Europe were part of the U.S., only tiny Luxembourg could rival the richest of the 50 American states in gross domestic product per capita. Most European countries would rank below the U.S. average, as the chart below shows. ...

Higher GDP per capita allows the average American to spend about $9,700 more on consumption every year than the average European. So Yanks have by far more cars, TVs, computers and other modern goods. "Most Americans have a standard of living which the majority of Europeans will never come anywhere near," the Swedish study says.

But what about equality? Well, the percentage of Americans living below the poverty line has dropped to 12% from 22% since 1959. In 1999, 25% of American households were considered "low income," meaning they had an annual income of less than $25,000. If Sweden--the very model of a modern welfare state--were judged by the same standard, about 40% of its households would be considered low-income.

In other words poverty is relative, and in the U.S. a large 45.9% of the "poor" own their homes, 72.8% have a car and almost 77% have air conditioning, which remains a luxury in most of Western Europe. The average living space for poor American households is 1,200 square feet. In Europe, the average space for all households, not just the poor, is 1,000 square feet.

Many who claim to be in the mainstream of CST seem to prefer European social democracy to Anglo-American democratic capitalism. In light of this study, they have a lot of explaining to do. Personally, it makes me feel a lot better about being on the neo-conservative "fringe" of CST.

Communion and Excommunication

Thought the item below would be of interest:

Holy Communion and Unholy Politics
By John P. Beal

When Cardinal Francis Arinze, prefect of the Vatican Congregation for Divine Worship and the Sacraments, was asked at a press conference in Rome on April 23 whether Senator John F. Kerry should be denied Communion, he responded: “The law of the church is clear. The church exists in the United States. There are bishops there, let them interpret it.” The flurry of conflicting statements prompted by the cardinal’s remark suggests that the law relevant to determining who can be barred from the reception of Communion may be clear, but its applicability to Senator Kerry (or any other politician) is not.

Church Teaching and Politics

The church’s magisterium has emphasized that politicians are not free to leave their moral principles in the cloakroom when they go to the floor of the legislature, or on the bus when they espouse public policy positions on the campaign trail. Pope John Paul II has clearly stated that all citizens, and by implication public officials, have “a grave and clear obligation to oppose” any law that attacks human life (Evangelium Vitae, No. 73). In a doctrinal note issued in 2002, the Congregation for the Doctrine of the Faith gave the pope’s directive particular application to public officials. The note quotes from Evangelium Vitae (No. 73), “For them, as for every Catholic, it is impossible to promote such laws or to vote for them,” and then comments that nevertheless, when the politician’s personal opposition to abortion is a matter of record and it is impossible to overturn laws allowing abortion, it is permissible for politicians, as Evangelium Vitae says, “to support proposals aimed at limiting the harm done by such a law and at lessening its negative consequences at the level of general opinion or public morality.”

In fact, most Catholic politicians in the United States more or less clearly assert their personal opposition to abortion, but this personal opposition is rarely put to the test in straight up-or-down votes on abortion or other life issues. Conformity with the teaching of the church must be discerned from politicians’ public records—their policy pronouncements, campaign rhetoric and actual votes on a variety of issues touching on life but not directly attacking (or promoting) it. On both sides of the aisle, these public records often reflect, to put it charitably, something less than ringing endorsements for the consistent ethic of life. Discrepancies between personal protestations and public records have sparked the current controversy over the admission of some politicians to Communion.

Exclusion From Holy Communion

The basic principle concerning admission of Catholics to holy Communion is clear: “Any baptized person not prohibited by law can and must be admitted to holy Communion” (Canon 912). Exceptions to this norm are to be interpreted strictly, i.e., by giving them the narrowest construal consistent with their literal meaning (Canon 18). The Code of Canon Law does contain two exceptions to this principle that are relevant for assessing the eligibility for reception of Communion by politicians whose public record is inconsistent with church teaching. Canon 916 addresses those who are conscious of having committed grave sin and warns such individuals that they are not to approach holy Communion unless they have first been reconciled to God and the church through sacramental confession. Since sin involves not only an external violation of a moral norm but also internal advertence and consent, the law normally leaves the decision about approaching holy Communion to the informed conscience of the individual. Canon 915, on the other hand, is addressed to ministers of holy Communion and stipulates, “Those who have been excommunicated or interdicted after the imposition or declaration of the penalty and others obstinately persisting in manifest grave sin are not to be admitted to holy Communion.”

Excommunication

If anything is clear, at least to canonists, about the current furor over admission of politicians to holy Communion, it is that no so-called “pro-choice” politician has been excommunicated as a result of her or his public record. Those who successfully procure an abortion and their necessary cooperators do, by that fact, incur the penalty of excommunication (Canon 1398). A necessary cooperator is one without whose assistance a specific abortion would not have occurred (Canon 1329 §2). However reprehensible politicians’ records on life-related issues may seem, it is virtually impossible to establish the causal link between their views and votes and any specific abortion, which is a necessary condition for them to incur the penalty. Nor does it seem plausible to claim that their public pronouncements amount to heresy. Thus, exclusion of politicians from holy Communion must rest on a judgment that they are obstinately persisting in manifest grave sin. The question immediately arises, however, what precisely is their grave sin? Does the fault lie in their views or in their votes?

Grave Sin

Most Catholic politicians do not directly contest the truth of the church’s moral teaching; they do, however, disagree with bishops and often among themselves about how this teaching can and should be applied in a pluralistic society in which there is no consensus on how public policy should deal with critical moral issues. The binding force of church teaching diminishes as it descends from the mountaintop of moral principles to the dark valley of practical applications. Thus it is hard to say, when views of politicians on public policy issues clash with those of church authorities, that the politicians’ dissenting views are per se sinful. They may be open to criticism, wrong-headed, inconsistent, pusillanimous or even stupid, but they are not unambiguously sinful.

Politicians’ votes on issues touching on the sacredness of human life can be equally ambiguous. In European countries, laws allowing abortions were enacted by (and could be repealed by) legislatures; in the United States, however, the basic law allowing abortion has since 1973 been one imposed by judicial fiat. Absent a constitutional amendment or a change of heart by the U.S. Supreme Court, public officials must make their choices within the stifling parameters established by Roe v. Wade and its progeny. Consequently, what is possible for politicians in this less than best of all possible worlds may fall considerably short of enactment of the full pro-life agenda. A legislator’s voting record, moreover, reflects only a fraction of his or her legislative activity. Votes on the floor do not disclose the log-rolling, compromising, horsetrading, armtwisting and other behind-the-scenes legislative maneuverings, which may render the bill on which politicians eventually vote, if not ideal, at least less toxic than it might otherwise have been. Votes on the floor, furthermore, especially when they are negative votes on bills favored by church authorities, leave opaque the motives without which a moral assessment of a legislator’s public actions is hazardous. In short, it is difficult to characterize a politician’s voting record as unambiguously sinful.

Manifest Grave Sin

Even if a politician’s views or votes can be fairly characterized as sinful, they do not qualify as “manifest” grave sin, as that word has been used in canonical tradition. For a sin to be manifest, it is not enough that it be public or even notorious; it must also be so habitual that it constitutes an objectively sinful lifestyle or occupation. The 1917 code, like the current Eastern code, spoke of excluding the “publicly unworthy” from holy Communion. Commentators suggested that these publicly unworthies included pimps, prostitutes, fortunetellers and magicians. While wags have long accused politicians of bearing uncanny resemblances to these miscreants, no one has seriously suggested that politicians constitute a comparable class of practitioners of an inherently disreputable occupation or cultivators of an intrinsically immoral lifestyle.

Under Pius XII, the Holy Office declared that, as presumed apostates who adhered to an anti-Catholic society, members of the Communist Party and some of its “fellow travelers” were to be refused holy Communion, since they were not properly disposed for its reception. But it requires a stretch to find an analogy between the Communist Party in Italy in the late 1940’s and any mainstream American political party today. If there were such an analogy, the refusal of holy Communion would have to be extended beyond politicians to those who support and vote for them, as it once was in Italy.

In its declaration in 2000, the Council for the Interpretation of Legislative Texts affirmed the traditional exclusion from holy Communion of the divorced and remarried as a class of people “obstinately persisting in manifest grave sin.” As authority for its declaration, the council cited Pope John Paul II’s Familiaris Consortio, which justified this traditional exclusion by the fact that the “state and condition of life [of divorced and remarried Catholics] objectively contradict that union of love between Christ and the church which is signified and effected in the Eucharist.” However loathsome some politicians’ views and votes on life issues may be, it is hard to see how it can be said that theirs is a state and condition of life in such objective contradiction to the Gospel that their grave sin should be judged “manifest.”

Obstinacy

To be refused admission to holy Communion, one must also “obstinately persist” in manifest grave sin. Such obstinate persistence presupposes that the one who would refuse politicians Communion has engaged in a serious effort to teach them to see the truth of the church’s teaching and the error of their ways. Effective teaching requires something more than turning up the rhetorical volume and brandishing anathemas. Resort to disciplinary measures like refusal of holy Communion is an implicit acknowledgment by church authorities that they have failed as teachers to convince Catholic politicians in particular and the larger society in general of the truth of the Gospel of life. Resignation to such a failure ill befits those who are charged to “proclaim the message; be persistent whether the time is favorable or unfavorable; convince, rebuke, encourage with utmost patience in teaching” (2 Tim 4:2).

Conclusion

It may be objected that by making it difficult to discipline erring members of the flock by refusing them Communion, this strict interpretation of Canon 915 makes “a scarecrow of the law.” This was, in fact, an objection raised during the code revision process about drafts of what eventually became Canon 915. The response of the commission responsible for revision, however, was not to lower the bar for refusing holy Communion but, if anything, to raise it. One of the functions of law in the church, as in every society, is to make it difficult for people, especially those in authority, to act on their visceral instincts, lest hasty action inadvertently harm a higher ecclesial value. By making it difficult for church authorities to refuse admission to holy Communion to politicians whose public records arguably cannot be squared with church teaching, a necessarily strict interpretation of Canon 915 serves as a brake on the temptation to politicize the Eucharist by allowing the sacrament that signifies and effects the union of love between Christ and the church to become a sacrament that signifies and brings about disunity. Zeal to protect the Eucharist from profanation by sinners can unwittingly lead to an even greater profanation by transforming the eucharistic celebration into a continuation of politics by liturgical means.

The Rev. John P. Beal is an associate professor in the School of Canon Law of The Catholic University of America, Washington, D.C.

Update on Newdow, Justice Thomas, and Professor Leiter

I've enjoyed, over the past few days, several e-mail exchanges with Professor Leiter, concerning his critical comments regarding Justice Thomas's Newdow opinion. (For a taste of the exchange, click here). Professor Leiter reminded me that, in his discussion, it was not Justice Thomas's *historical* argument about the original meaning and purpose of the Establishment Clause that was characterized as "lunatic" -- again, many scholars endorse it. Rather, his point was that "when there are legal arguments on both sides of a question--say, whether the Establishment Clause applies to the states--to adopt the side that has repulsive moral and political consequences is lunatic."

Now, as Professor Leiter and I have discussed, I have a more positive view of Justice Thomas's work and views than he does, and I am not convinced that embracing Thomas's position -- i.e., "the federal establishment clause does not apply against the states, but the free exercise clause does, and prevents state action that interferes with religious freedom and liberty of conscience, while probably permitting some things that today are regarded as 'endorsements' of religion" -- would lead to "repulsive moral and political consequences." Still, I thought I should clarify any misimpressions I might have created about his argument.

Rick