Regarding Ryan’s ruminations on S.M. Hutchens’ review of E.O. Wilson’s The Creation: An Appeal to Save Life on Earth (warning: I’ve read neither the book nor the review, just Ryan’s post about them), I think Ryan has it right in concluding that in Wilson’s account of Christianity “nature has become only a vehicle for supernature.”

It’s easy enough to see how this might happen. Suppose that, as Aristotle and Aquinas and eudaimonistic ethicists generally have thought, there is a natural end for man knowable by human reason and that this end is normative for human beings in the sense that human beings should order their actions to it. Suppose further that some religion teaches that there is some other end disclosed by God in revelation and that religious believers ought to treat this other end as normative, ordering their actions to it rather than to any other. If all this is the case, then it’s easy to see that those pursuing the natural end for human beings and those pursuing the supernaturally revealed one have adopted quite different agendas and that these agendas may come into conflict.

The solution to this problem in the Catholic moral tradition has been to point out that a difference of ends need not make for a conflict of ends if the one end is appropriately subsumed within the other. For example, the end of running an excellent emergency room need not conflict with that of running an excellent hospital, and the end of being a good father need not conflict with that of being a good man, for in each case the former end is subsumed in the latter. Hence, the Catholic tradition has taught that the natural end for human beings is subsumed within the supernatural end, with the result that there is no conflict between them. Although the supernatural end, as something grander and more expansive than the natural end, requires us to do more than the natural end does, nevertheless no action enjoined by the supernatural end is contrary to the natural end (theology never commands what natural ethics knows to be wrong), and every action contrary to the natural end is also contrary to the supernatural one (what natural ethics forbids, theology forbids too). This is one of the things Catholic theologians have traditionally meant when they said that grace does not destroy nature but perfects its.

It’s worth pointing out in this context that Wilson seems to be writing against some of the Protestant traditions, not the Catholic one. If a person thinks that nature is wholly corrupt, that there is no natural morality knowable by human reason, that grace completely supplants nature, that the basis of morality is the divine command and not the essences of things as created by God—and some Protestant theologians can plausibly be read as having said such things—then all bets are off. Then there really can develop a conflict between a natural human morality and a supernatural, divinely revealed one.

I’ve heard of the odor of sanctity, but this carries things rather too far.

Although I sympathize with much of what Senator DeMint and Professor Woodard say in their Web article last week, I think some of their arguments go too far.

The main point that Senator DeMint and Professor Woodard make is that “the First Amendment rights of freedom of speech and the practice of religion” are “everywhere under attack” because groups like the ACLU “use[] the legal system to threaten people by ‘slapping’ them with lawsuits. . . . The publicity of such litigation results in a vilification of those who take a stand for moral behavior in the hope they will be silent next time.”

The fact that the ACLU has been very active in protecting the free speech rights of perfectly odious groups like the KKK should give one pause here. The ACLU is not against free speech. The truth is that some of the examples that Senator DeMint and Professor Woodard give in the article do not concern anyone’s right to free speech at all.

Take the case of the pregnant cheerleaders. At a certain public high school in Texas, several of the cheerleaders turned up pregnant. The school authorities wanted to remove them from the cheerleading squad but backed down when the ACLU threatened to sue. This, the senator and the professor say, shows that “the community lost its freedom to express and defend traditional values.”

Now, it may be that the Constitution permits public schools to remove pregnant students from leadership positions in student organizations, and perhaps public schools should actually do so (though I have serious doubts about that), but a lawsuit to stop a school from removing students from the cheerleading squad would in no way impair the free speech rights of anyone.

The ACLU did nothing to stop anyone from saying anything whatsoever about the pregnant cheerleaders. The question was whether the government-operated school could change, in a way adverse to the students, the conditions under which they participated in school activities. In other words, could the school, consistent with the Constitution, punish the cheerleaders for getting pregnant? Maybe yes, maybe no, but however that works out, it’s not a question of anyone’s right to free speech. My right to free speech includes a right to say that your child is a low-down, good-for-nothing so-and-so; it does not extend to punishing your child for her behavior.

Compare this case. In the famous mystery passage in Casey, the Supreme Court said that “at the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life”—and thus there is a right to abortion. This, of course, is perfectly ridiculous. Even though people have an undoubted right to believe whatever they want about abortion, a right to hold a belief does not generally imply a right to implement that belief—not in private conduct and certainly not in government conduct. Similarly, the right to think and even to say that teenage girls who get pregnant have behaved badly and ought not be held out by government institutions as role models does not imply that the government may in fact punish female public school students who get pregnant. Again, perhaps the government may do this—but if so, it has nothing to do with the free speech rights of those who want it done. It has to do with the absence of a right to be protected from such government action on the part of the student being punished.

When moral traditionalists cast their arguments, as Senator DeMint and Professor Woodard do, in terms of the speech or religion rights of the majority, they thus misunderstand the situation. The ACLU is perfectly right when it answers such arguments by saying that it doesn’t want to interfere with what those in the majority say or how they practice their religion. The issue concerns the use of government power against members of the minority. The proper limitations on such use is a very difficult question, and it cannot be settled by appeals to the rights of the majority under the First Amendment.

Regarding Cassell’s argument at the Volokh Conspiracy, Jody, I have no opinion on the merits of the particular case at issue, but generally speaking—in opposition to your claim—I think it makes a lot of sense to allow victims to present evidence at the sentencing hearings of offenders.

It makes sense not because we’re confusing torts and crimes—though violent crimes are torts, so I’m not sure that there is so much confusion after all—but because of the availability heuristic. As Tversky and Kahneman showed in work that later got a Nobel Prize in economics, people tend to systematically confuse the ease with which they bring a kind of event to mind with the objective frequency of that event. Thus, since we hear about horrific child abductions quite frequently but drownings in swimming pools less often, people tend to think the former are a more serious threat to children than the latter. The reverse is actually the truth by multiple orders of magnitude.

In sentencing criminals, the relevant considerations include not only the effect on the defendant sentenced but also the effects on his potential future victims if the defendant gets a light sentence. We cannot identify these people at the time the sentence is passed, however, and so they cannot appear in court. Because of the availability heuristic, there is a systematic danger that judges will overestimate the interests of the defendant whom they can see and underestimate the interests of the future victims whom they cannot see. Allowing the victims of the crime for which the defendant is being sentenced to testify is thus a rough corrective to this problem: it puts before the judge (makes “available” to him in the sense of availability at issue) the other interests he should consider and that he is otherwise likely to systematically underestimate.

The recent law graduate you met at jury duty, Anthony, was no nit-wit, appearances to the contrary notwithstanding. In fact, she was probably pretty sharp. She knew that it’s a reversible error to seat a juror who says that he or she can’t be fair, and, presumably because she didn’t want to serve, she took the first opportunity presented to her to say the magic words that would keep her off the jury. We may, with good reason, attack her lack of public spiritedness, but not her intellect. If she wanted out of jury duty, she said exactly the right thing.

I agree, Jody, that there is an interesting and important connection between the division in the Church over liturgy and the division in the Church over moral issues, and that it’s no accident that those who support traditional morality also support the traditional liturgy while those who support moral innovations also support liturgical innovations.

The connection is not, in my view, the one Professor Stith points out. I have not read the paper to which he refers, and so perhaps I’m getting him quite wrong, but I think Professor Stith misreads the situation when explains it by saying that there is a “common lack of perception for dignity of sacredness and with it the loss of respect or reverence for life, on the one hand, and for the Host on the other.” It’s much more complicated than that.

“Dignity,” without more, is an entirely empty moral concept—it’s no better than “goodness” or “moral rectitude” until you explain what you mean by it.

Such an explanation has to include either some deep meta-ethical premises that spell out what it means to say that human beings have dignity and in what that dignity consists (e.g., as in Kant, a human being is a morally autonomous subject and so should act only on those maxims that he or she can consistently will everyone act on, etc.), or else, at the very least, a set of particular moral norms that spell out what “treating a person in a way that respects his dignity” actually means in practice (e.g., that you shouldn’t kill innocent human beings, etc.). Ideally, an account of dignity should include both. If we have neither, then dignity (or any other supposedly foundational moral concept) is just an empty placeholder into which we pour our antecedently held and as yet unjustified moral beliefs.

Hence, if I were on the other side of the debate here, I would be quite offended at the notion that I lacked respect for dignity or the sacred. I would say that I have great respect for the dignity of the human person—so much so that I don’t think I’m entitled to coerce their beliefs and behavior when, for instance, it comes to making choices like those related to abortion.

In fact, this is exactly what many abortion-rights advocates do say. And they’re perfectly right to say this—given their concept of dignity but not the one usually employed in the Catholic tradition. We can’t win an argument with such people by saying that they have an inadequate perception of dignity. We have to get beyond that word, dig down into the meta-ethical premises being used to define it, and argue over which such premises are true or justified.

One of my favorite intellectual puzzles is figuring out what deep conceptual presuppositions cause some people to be conservatives, other people to be liberals. That is, on a range of issues that would seem largely unrelated—say, abortion, affirmative action, and gun control—it turns that people’s positions are highly correlated. For instance, people who are pro-life tend also to be against affirmative action and against gun control, whereas people who are pro-choice tend also to be in favor of affirmative action and in favor of gun control. Why is this?

I’m still working on a general solution, but one thing is pretty clear. Conservatives tend to think that demand curves are elastic, liberals that they’re inelastic. Economists talk about demand for a product or service as being elastic if a 1 percent increase in price produces more than 1 percent decrease in quantity sold, inelastic if a 1 percent increase in price produces less than a 1 percent decrease in quantity sold. Elasticity is a precisely defined concept, but the basic idea is easy enough to understand: Roughly, demand is elastic if, when you raise the price, people just pay the higher price regardless, but inelastic if, when you raise price, people stop buying the product and do something else with their money.

So, for example, conservatives think the demand for crime is elastic: if you raise the price of crime to the criminal by increasing prison sentences, you’ll get a lot less crime. Liberals, on the other hand, tend to think that increasing prison sentences will have little effect on crime rates. In other words, they think the demand for crime is inelastic relative to prison sentences. Similarly for taxes. Conservatives tend to think that if you raise income taxes, people will work a lot less, whereas liberals tend to think that you can raise income taxes and not much affect how much people will work.

A fascinating role-reversal is thus at work in the voting rights cases that the United States Supreme Court heard earlier this week. As this story in the Legal Times explains, the Court is considering a constitutional challenge to an Indiana statute that requires citizens who want to vote to produce a state-issued photo identification such as a drivers license.

Conservatives generally favor the law, and liberals generally oppose it. In particular, the Indiana Democratic Party and the ACLU say that the law is unconstitutional because it will deter people—especially old people, the poor, and minorities—from voting. They are thus in effect saying that the demand for voting is very elastic: Make it even a little more difficult for people to vote, and they’ll stay away from the polls. The conservative supporters of the law, on the other hand, are saying just the opposite: raising the effective cost of voting will not affect how many people vote because the demand for voting is inelastic.

Where does the truth lie? I’m a conservative, and so I usually think that demand curves are pretty elastic. Nevertheless, I also think that the Indiana statute would not deter many people from voting and so ought to be held constitutional. If I ask myself why I think this, however, and if I’m being completely honest, I would have to say that I don’t really know.

Here’s a slippery problem. According to this story in the Legal Intelligencer, in the early 1990s Joel McKiernan and Ivonne Ferguson were involved in a romantic relationship. After the relationship ended, they remained in contact, and when, several years later, Ms. Ferguson wanted to conceive a child, she asked Mr. McKiernan to donate sperm for in-vitro fertilization. They agreed orally that Mr. McKiernan would do so, but that he would have no parental rights and no obligation to support any children thus conceived.

The procedure was successful, and Ms. Ferguson gave birth to twins. Soon thereafter Mr. McKiernan and Ms. Ferguson lost contact. About five or six years later, however, Ms. Ferguson was in reduced financial circumstances, and, after applying for and being denied state aid for her children, she sued Mr. McKiernan for child support, retroactive to the birth of the twins.

The case ended last week in the Pennsylvania Supreme Court. The court held that Mr. McKiernan has no obligation to support the children. In the majority opinion, Justice Baer argued that a contrary decision would discourage sperm donation and thus undermine many of the alternative means of human reproduction that have become so common in the last couple of decades

The principal argument for the dissent (there were two dissenting opinions, available here and here) was that a parent has no legal authority to bargain away a child’s right to support from the other parent and thus any agreement between Ms. Ferguson and Ms. McKiernan was void.

Oh, what a tangled wed we weave, when strangely choose we to conceive.

Here’s one reason—as if people who’ve read my writings needed any more proof—that I’ll never be literary. In his interesting web article, Gerald Rusello quotes Jacques Barzun as saying, “the historian can only show, not prove; persuade, not convince.” I know other people get a lot out of a sentence like that; that, presumably, is why Russello quoted it. But when I read the sentence, I started wondering under what circumstances I might ever say, “Well, he showed it to me, but he didn’t prove it; I was persuaded, but not convinced.” Unsure when I—or indeed anyone—would ever say something like that, I’m left completely at sea.

I think that, in his recent web article, Fr. Neuhaus underestimates Professor Budziszewski’s point that written constitutions can undermine constitutionalism.

Fr. Neuhaus rightly notes that this need not happen if judges interpreting the constitution take an appropriately deferential attitude towards the constitutional text. This shows, however, only that there is no necessity to the idea that constitutions undermine constitutionalism. I’ve not read Budziszewski’s article, but I suspect that all he’s saying is that there is a tendency in practice for constitutions to undermine constitutionalism because, although judges should defer to the text, in practice they very often don’t. American constitutional history confirms the existence of this tendency, and, as Robert Bork showed in his Coercing Virtue: The Worldwide Rule of Judges, the tendency is not just an American one but seems to attach the judicial office as such because judges in Canada and Israel behave as badly or worse than their American counterparts.

The theory of the U.S. Constitution was never to rely for good government on the virtue of officeholders but rather to control them through a system of checks and balances. Although on the whole an absolutely brilliant design, the Constitution provides for no check on the judicial power to interpret the Constitution short of the amendment process, which is in fact almost always impracticably difficult. The result is that, in practice, there is no check on the Supreme Court’s power to interpret the Constitution. In this respect, there is a serious flaw in the Constitution’s system of separation of powers.

It need not have been this way. Legal theorists as diverse as Bork, Bruce Ackerman and Michael Perry have all proposed systems in which, in one way or another, there would be a viable political process that would overrule the court’s constitutional interpretations. In one of the simpler of such proposals, two-thirds majorities of both houses of Congress, along with the concurrence of the President, could overrule the Supreme Court. This particular proposal might make it too easy to overrule the court, but there’s plenty of room for tinkering with details here. One could require larger supermajority votes, concurrences of a percentage of state legislatures, confirming votes in subsequent congresses, national referenda, etc. The point is that the process to overrule the court should be difficult and require significant supermajoritarian support but should not be so difficult as to become impracticable the way the amendment process has become.

A system like this would correct the design flaw in the U.S. Constitution and would return final authority to interpret the Constitution back in the hands of the American people.

First, I want to follow Jody in congratulating Tony Blair, who has been a good friend to this nation, on his conversion to Catholicism.

I am also happy to congratulate Mr. Blair’s country, the United Kingdom, on its conversion to Catholicism. Yes, you read that correctly. What I mean is that, according to this story in the Telegraph, “Britain has become a ‘Catholic Country’” because “Roman Catholics have overtaken Anglicans as the country’s dominant religious group. More people attend Mass every Sunday than worship with the Church of England.” Hence, “the established Church has lost its place as the nation’s most popular Christian denomination after four centuries of unrivaled influence following the Reformation.”

When you read more carefully, however, it turns out the picture is not quite so rosy, even for the Catholics. It turns out that 861,000 persons in Britain attend mass every Sunday while only 852,000 turn up for Anglican services. The population of Britain is about 60.7 million souls, so even the combined weekly attendance of the Catholic Church and the Anglican Church aggregates only 2.8 percent of the population.

Moreover, the Catholics numbers have surpassed the Anglican ones only because, although attendance at Anglican services has fallen 20 percent since 2000, attendance at mass has fallen only 13 percent. The difference seems to be explained by an influx of Catholic immigrants from Africa and Eastern Europe; this has reduced the rate of decrease in the Catholic numbers. So attendance at both churches is declining rapidly; it’s just that Anglicans are even worse off than the Catholics.

The Rt. Rev. Crispian Hollis, the Catholic Bishop of Portsmouth, has a curious take on this. He says that “these figures are encouraging. It shows that the [Catholic] Church is no longer seen as on the fringes of society, but in fact is now at the heart of British life.” Well, sure, if an organization with committed members totaling 1.4 percent of the population (and many of these recent immigrants who may not remain in the country for long) can be at the heart of a nation’s life.

The Anglican clergy, too, seems to misunderstand the significance of these numbers. Says the Church of England’s Rt. Rev. Graham Cray, “It isn’t a competition. I’m delighted to see all the Christian denominations flourishing.” I appreciate the ecumenical sentiment, but that’s quite a strange definition of flourishing you got there, Rt. Rev.

Re: women freezing eggs or couples genetically designing babies, I agree that both will happen in the future, but I’m not sure how common either will be.

In discussing Dworkin’s article about the former yesterday, I subtly added to Dworkin’s analysis an assumption that such technology would become very cheap. Artificial birthcontrol changed sexual mores not only because it was effective in preventing pregnancies but also because it was cheap enough for virtually anyone to buy and use. That’s in the nature of a pill: once the chemical formula is known, the marginal cost of producing one more pill using the same formula is practically zero, and so it’s possible to make the pills very cheap. By contrast, the marginal costs of harvesting eggs, fertilizing them in test tubes, testing embryos for an ever expanding set of diseases or genetic abnormalities, correcting defects found, and reimplanting them in women’s wombs, etc., are never going to approach zero. These things will always require a signficant amount of time and attention from medical professionals; hence, they’ll always have a significant cost. At the moment, those costs are quite high. Yes, they will likely fall over time, but it’s very unlikely that they’ll become dirt cheap the way birth control pills are. The costs will probably remain significant in relation to the incomes of most people.

The question of whether people will incur those costs—or, more accurately, how many people will do so, for surely some will—is affected by the fact that there will always be a good and very cheap economic substitute to designing babies—namely, making babies the old fashion way. Figuring out what percentage of the population will think the costs of going the technology-heavy route are worth the benefits will depend on a lot of things, many of which cannot yet be known. If testing babies made in the normal course is easy and cheap (so that aborting the unhealthy ones is also easy and cheap), that might be a compromise option that is financially attractive for many people. Also, if the government starts paying for the relevant procedures, or requires employers offering health insurance to include coverage for them, that will of course increase the percentage of people who choose to go the technology-heavy route to reproduction.

So, on the whole, I agree that such things will occur in the future. But as to how commonly they will occur, I think that remains to be seen. If the costs fall enough, they will be the norm in wealthy countries (it’s obvious that the poor nations could never afford such things on a massive scale any time in the foreseeable future), but if the costs remain anything like what they currently are, they will be an aberrational option chosen only by the affluent, and perhaps even then only when health problems make the old-fashion option (with in utero genetic testing, etc.) unviable.

On the other hand, predicting the future based on cost projections is very dangerous. When Alexander Graham Bell publicly exhibited the first working telephone, a group of “futurists” in attendance dismissed it as a novelty the costs of which—mostly running wires all over the land—would make it impossible to bring to market. One very clever individual in the group, however, saw more potential for the invention. He declared that he could foresee a day “in which there will an instrument like this in every major city in the world.”

Here’s a tale of woe. According to this story in the American Lawyer, lawyers in Manhattan’s elite law firms—the kinds of places where partners make $1 million a year and more—are depressed because they don’t make as much money as financial professionals. Alas, it’s true. Top investment bankers have long made a multiple of what top lawyers make, and private equity types and hedge fund managers can make considerably more than that.

Apparently the differences are becoming undeniably apparent in social settings. The article describes a fund-raising auction at a private school in Manhattan: when a home-cooked meal by a famous chef was being auctioned off, the doctors dropped out of the bidding at $7,000, the lawyers at $15,000, and then the bankers, private equity and hedge fund crowd got serious and fought it out among themselves, with the winning bid coming in at $40,000.

“‘Face it, we have no status,’ says an Am Law 100 [i.e., one of the one hundred most profitable law firms in the U.S.] partner of the pecking order at his sons’ private school. ‘We go to these school functions, and this well-heeled group looks right through you. They won’t give you the time of day. You’re just one step ahead of the doorman.’”

Indeed, there is no misery so small that it cannot fill the human heart.

Ronald Dworkin—not the famous legal theorist, but a medical doctor and a senior fellow at the Hudson Institute—writes in yesterday’s Wall Street Journal about the development of technology that will allow women to freeze unfertilized eggs when they’re young so that they can use them to become pregnant later in life. Dworkin foresees a world in which women could have some of their eggs harvested and frozen in their twenties, spend a couple of decades building a career, and then use the eggs to become pregnant in their forties or fifties. Just as cheap, effective artificial contraceptives allowed women to be as cavalier about sex as men are, so now the technology to freeze eggs will allow women delay reproduction as long as men can. Assuming the cost of freezing eggs will be low enough, Dworkin is probably right that we’ll see quite a lot of this in the decades ahead. The full text of Dworkin’s article is here (subscription required).

Of course, Ryan, I’m always happy to help.

I’m no Rahner scholar, but it seems implausible to me that a fellow can get famous for saying nothing more about the possibility of salvation outside the visible Church than had been said by Pius XII, Karl Adam, Pius IX, Thomas Aquinas, or even John Chrysostom.

More generally, I think virtually everyone, including Rahner and most Rahnerians, agree that (a) it is possible to be saved outside the visible Church, and (b) there is nevertheless a benefit to being inside the visible Church.

The disagreement concerns the nature of the possibility and the magnitude of the benefit. Is the possibility of salvation outside the Church a remote, metaphysical possibility rarely attained in practice, or is it a realistic feasibility that is routinely actualized? Is the benefit of being inside the visible Church a small help at the margin, or does it usually make the difference between salvation and damnation? The traditional view tilts strongly towards the idea that salvation outside the visible Church is rare and difficult and that membership in the visible Church is often the determining factor between salvation and damnation. The modern—I might say Rahnerian—view tilts strongly in favor of the idea that salvation outside the visible Church is commonplace and membership inside the visible Church is only a small help at the margin. I see the CDF note as a nudge back towards the traditional view.

The Congregation for the Doctrine of the Faith has issued a doctrinal note on evangelization. Here’s a sample:

Although non-Christians can be saved through the grace which God bestows in “ways known to him”, the Church cannot fail to recognize that such persons are lacking a tremendous benefit in this world: to know the true face of God and the friendship of Jesus Christ, God-with-us. . . . The revelation of the fundamental truths about God, about the human person and the world, is a great good for every human person, while living in darkness without the truths about ultimate questions is an evil and is often at the root of suffering and slavery which can at times be grievous. This is why Saint Paul does not hesitate to describe conversion to the Christian faith as liberation “from the power of darkness.” . . . It is an inestimable benefit to live within the universal embrace of the friends of God which flows from communion in the life-giving flesh of his Son, to receive from him the certainty of forgiveness of sins and to live in the love that is born of faith. The Church wants everyone to share in these goods so that they may possess the fullness of truth and the fullness of the means of salvation, in order “to enter into the freedom of the glory of the children of God.”

Take that, Karl Rahner. The full text of the note is available here.

I don’t know, Rusty. Physics may not give us words of comfort for a friend dying of cancer, but molecular biology may teach us how to cure him.