Friday, July 17, 2009

On July 9, 2009, Pope Benedict XVI released to the public his third encyclical letter Caritas in Veritate dealing with the subject of "integral human development in charity and truth."{1} I predict that many of particular economic agendas will try to proof-text the pope's words and bend them to their own preconceived notions{2} rather than attempt to understand what is written there within the context of general norms of interpretation.

My purpose in this posting is to call attention to the encyclical and make a few passing comments on what I have seen of it so far. Admittedly, I have not read the text in detail yet. However, my original perusal of it in outline has generated some initial thoughts. But I am aware of how some people as an excuse for trying to dismiss my arguments may accuse me of putting a spin on the pope's words. For that reason, I will before I give my initial musings reference the pope's statement on the role of the church in politics as he enunciated in his first encyclical letter Deus Caritas Est circa early 2006:

The Church's social teaching argues on the basis of reason and natural law, namely, on the basis of what is in accord with the nature of every human being. It recognizes that it is not the Church's responsibility to make this teaching prevail in political life. Rather, the Church wishes to help form consciences in political life and to stimulate greater insight into the authentic requirements of justice as well as greater readiness to act accordingly, even when this might involve conflict with situations of personal interest. Building a just social and civil order, wherein each person receives what is his or her due, is an essential task which every generation must take up anew. As a political task, this cannot be the Church's immediate responsibility. Yet, since it is also a most important human responsibility, the Church is duty-bound to offer, through the purification of reason and through ethical formation, her own specific contribution towards understanding the requirements of justice and achieving them politically.

The Church cannot and must not take upon herself the political battle to bring about the most just society possible. She cannot and must not replace the State. Yet at the same time she cannot and must not remain on the sidelines in the fight for justice. She has to play her part through rational argument and she has to reawaken the spiritual energy without which justice, which always demands sacrifice, cannot prevail and prosper. A just society must be the achievement of politics, not of the Church. Yet the promotion of justice through efforts to bring about openness of mind and will to the demands of the common good is something which concerns the Church deeply. [Pope Benedict XVI: Excerpt from the Encyclical Letter Deus Caritas Est section 18 (circa January 25, 2006)]

It may sound strange to excerpt the pope's first encyclical letter in a post pertaining to the release of his third encyclical but there is a method to my approach here. For one thing, to a certain extent it is common for a pope with their first encyclical letter to set forth a kind of overview of what they intend to approach. And as the purpose of the pope's most recent encyclical letter is to focus more on specific matters of economic development, it bears noting his previous words of a more general nature on the role of the Church pertaining to these matters.

After all, if the pope's own clarifications previously enunciated on the general scope of the role of the church in politics and economics are not accounted for, there will be those of no small number who read too much into his words. These persons of various partisan bends will try to claim him as an ally in some kind of canonization of one particular school of economic thought over another. Insofar as the general thrust of the most recent encyclical, this paragraph towards the beginning of the text in my mind sums up the overarching intention of the document:

I am aware of the ways in which charity has been and continues to be misconstrued and emptied of meaning, with the consequent risk of being misinterpreted, detached from ethical living and, in any event, undervalued. In the social, juridical, cultural, political and economic fields — the contexts, in other words, that are most exposed to this danger — it is easily dismissed as irrelevant for interpreting and giving direction to moral responsibility. Hence the need to link charity with truth not only in the sequence, pointed out by Saint Paul, of veritas in caritate (Eph 4:15), but also in the inverse and complementary sequence of caritas in veritate. Truth needs to be sought, found and expressed within the “economy” of charity, but charity in its turn needs to be understood, confirmed and practised in the light of truth. In this way, not only do we do a service to charity enlightened by truth, but we also help give credibility to truth, demonstrating its persuasive and authenticating power in the practical setting of social living. This is a matter of no small account today, in a social and cultural context which relativizes truth, often paying little heed to it and showing increasing reluctance to acknowledge its existence. [Pope Benedict XVI: Excerpt from the Encyclical Letter Caritas in Veritate section 2 (circa June 29, 2009)]

Now having situated the pope's latest encyclical in the context of principles he outlined in his first encyclical{3}, it seems appropriate for me to give my own view on the text from what I have thus far seen of it.

As I already said, I have not read the text in detail yet. Nonetheless, my original impression is one of the view that some of the ties it attempts to make are tenuous at best. But then again, encyclical letters virtually never prescribe precise formularies on these kinds of matters anyway. Instead, what they seek to present or re-illuminate in a variety of ways are general principles which can be of no small assistance for those who attempt to find solutions to these kinds of matters. There are a variety of ways of approaching issues or problems: not all of which are of equal merit. It is therefore of importance in such matters to not fail to account for important principles of ethics and morality along the way. That in a nutshell is what encyclicals such as this one intend to help avoid.

I should note also that those who think my representation of what encyclicals or other papal documents are intended to convey in these kinds of areas can consider my description in light of Pope Benedict XVI's own words as referenced above from his first encyclical letter where he touches on the role of the church in politics and the economic factors that go into building a just society. And while I will probably write on these matters as a combination of time, circumstances, and inclination coalesce to facilitate that, at the moment this will have to suffice for the subject at hand.

Notes:

{1} That is the subtitle of the encyclical as it reads on the Vatican's website version of the text.

{2} Particularly the distributivist sorts. I wrote some expository musings on this matter as well as interacted with emailers in the mid spring to late summer of 2007 in a series of postings. Here they are in reverse order:

Revisiting Distributivism (circa May 25, 2007)

"The Empire Distributivist Strikes Back" Dept. (circa May 27, 2007)

On Fundamental Rights, Private Property, and Authentic Dialogue: (circa May 31, 2007)


On the "Phantom Menace" of Distributivism (circa September 8, 2007)

"From the Mailbag" on Distributivism (circa September 10, 2007)

In the drafts folder of my weblog is an unfinished response from another emailer circa October of 2007 which challenges some of my statements on distributivism in the series above. In light of the pope's latest encyclical letter, it seems appropriate to set aside some time as I am inclined and finish that thread at some point before the end of the summer. I note it here to put pressure on myself to get to that thread as soon as I can -possibly as soon as the next blogging cycle which runs from July 22nd-August 21st.

{3} His second encyclical was on the topic of hope which is not as explicitly connected with the present encyclical as thematically as his first encyclical so evidently is.

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Wednesday, July 15, 2009

Briefly on Judge Sonia Sotomayor and Confirmation Hearing Strategery:

These were my offhand comments from July 11, 2009 to an inquirer on the upcoming hearings. Their words will be in dark green font.

What's your predictions on this? Think the Senate will confirm her barely or not confirm barely? I get the feeling it's going to be a barely just not sure which end it will be

Since we are replacing Souter and therefore holding serve basically, I do not think this is the battle we want to go all out on. It will suffice to make this a platform for discussing judicial philosophy and thereby having a stronger foundation to go after Obama's next appointee.

Barring something extraordinary coming out, I do not see how she does not get confirmed. That does not means we roll over like we did for Ginsberg though -it is clear the Dems are not gonna stop their character assassination crap so in the words of that great western philosopher Alice Cooper "no more Mr. Nice Guy." We should make it a tough fight but pull a few punches and save our real "bunker buster bombs" for taking down socialized health care and the crap and tax which would both be far more damaging than [Sotomayor] long-term.


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Tuesday, July 14, 2009

Chronicling Sonia Sotomayor's Latest Decision Reversal By the Supreme Court and Some Musings on the Flaws of the "Empathetic" Judicial Philosophy:

I will draw from material in the following two articles in sketching this sequence out:

White Firefighters Were Victims of Discrimination, Supreme Court Rules

High Court Rules for White Firefighters in Discrimination Suit

Having posted the links, let us review the process of this case before it reached the high court. To start with, we have the suit brought against the city:

The city had thrown out the results of a promotion test because no African Americans and only two Hispanics would have qualified for promotions. It said it feared a lawsuit from minorities under federal laws that said such "disparate impacts" on test results could be used to show discrimination.

In other words, a test designed to measure qualifications for promotion in the New Haven was thrown out because of the racial makeup of the highest test scorers. There is no way objectively speaking that is not a case of race discrimination. Yet here is what happened when the case was brought to the district court:

District Judge Janet Bond Arterton dismissed their suit before it went to trial. She said in her 47-page decision that the city was justified under the law in junking the test, even if it could not explain its flaws.

Notice the "logic" of this decision: the test can be scrapped even though they could not find anything wrong with it. On what basis could this be justified rationally??? Oh yes, for some reason a test of qualifications did not result in a desired racial makeup so that supposedly proves inadequacy. Is it at all possible that the reason the minorities scored lower was simply because they were as individuals not as qualified and their race had nothing to do with it??? Oh but that is not the "politically correct" answer so you get judicial idiocies like those of Judge Arterton which are based not on law or statute but instead on personal biases.

That brings us to the 2nd Court of Appeals where Judge Sotomayor was sitting:

The case then went to the 2nd U.S. Circuit Court of Appeals in New York, where Judge Sotomayor and fellow Judges Robert Sack and Rosemary Pooler heard the appeal.

But instead of issuing a detailed and signed opinion, the panel said in a brief summary that, although it was "not unsympathetic" to the plight of the white firefighters, it unanimously affirmed the lower court's decision for "reasons stated in the thorough, thoughtful and well-reasoned opinion."


So it is "thoughtful and well-reasoned" according to Sotomayor and the 2nd Appeals Court to throw a test out that no flaw could be found in because it did not generate the desired racial outcome??? This is far from "thoughtful and well-reasoned" but instead it is both arbitrary and unreasonable.

For rather than provide equality of opportunity this methodology seeks to mandate a required outcome. This is contrary to the very principles on which this country was founded and is also contrary to the most basic principles of reason, logic, and ethics.

This case also shows the intrinsic flaw of the whole "empathy standard" that President Barack Obama talks about when it comes to judicial philosophy and which Judge Sotomayor evidently embodies. For an "empathy standard" is hardly one that is non-normative (read: objective) but instead is of a normative (read: subjective) nature. And such a subjective foundation is very dangerous ground on which to be basing judicial or indeed any kind of philosophy on.

That brings us to the decision handed down by the Supreme Court when it reversed Sotomayor's 2nd Appeals decision:

[T]he court was deciding when avoiding potential discrimination against one group amounted to actual discrimination against another.

In a 5-4 vote, the court's conservative majority said that is what happened in New Haven.

"Fear of litigation alone cannot justify an employer's reliance on race to the detriment of individuals who passed the examinations and qualified for promotions," Justice Anthony Kennedy wrote for the majority.


That is a very reasoned and logical approach to these matters. But notice what was outlined in the minority view:

Justice Ruth Bader Ginsburg wrote for the court's dissenting liberals and said the decision knocks the pegs from Title VII of the Civil Rights Act. She read her dissent from the bench for emphasis. "Congress endeavored to promote equal opportunity in fact, and not simply in form," she said. "The damage today's decision does to that objective is untold."

The problem of course with "equal opportunity in fact" type arguments is such endeavours cannot be undertaken without discrimination against other parties. It is one thing to use race criteria as one of several factors that go into such an assessment.{1} But in the case of New Haven, that was the sole criteria in which the test was thrown out. Or as the article noted on the court's majority decision as authored by Justice Anthony Kennedy:

Justice Kennedy's opinion yesterday referred to the judgment of Judge Sotomayor and the other two judges only by noting their short opinion. He said the standard for whether an employer may discard a test is whether there is a strong reason for the employer to believe that the test is flawed in a way that discriminates against minorities, not just by looking at the results.

In New Haven's case, "there is no evidence -- let alone the required strong basis in evidence -- that the tests were flawed because they were not job-related or because other, equally valid and less discriminatory tests were available to the city," Justice Kennedy wrote.


In other words, if there was no evidence of discrimination against minorities in the test, then there was no justice in throwing it out. And considering that the original judge admitted that there was no evidence of racial bias in the test, that only underscore objectively the lack of justification in throwing the test out in the manner in which they did.

Readers need to ask themselves which standard of judicial philosophy are they the most comfortable with, one that bases its decisions on reason, logic, ethics, and objective standards or one that is unreasonable, illogical, unethical, and subjective. Because in a nutshell, that is what the difference is between rulings based on law and justice and those based on personal whims and "empathy." In one case Lady Justice wears a blindfold and in the other she does not. Your humble servant for one prefers to see Lady Justice with her eyes covered.

Note:

{1} If it is used as a tie-breaker in cases where there general equality in other ways, that is one thing but that is not what was done.

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