In re bullets and Obama

Republicans are always keen to charge Democratic Presidents with executive overreach, and vice-versa, especially when the White House is occupied by an especially-despised and aspirational President. But in the handwringing over moves to limit access to certain kinds of bullets, some critics have backed a lame horse. The Gun Control Act of 1968, as amended, bans the “manufacture or import [of] armor piercing ammunition.” 18 U.S.C. § 922(a)(7). In turn, the Act excludes from its definition of armor-piercing ammunition those “projectile[s] which the Attorney General finds [are] primarily intended to be used for sporting purposes….” 18 U.S.C. § 921(a)(17)(C). In effect, the Act expressly gives the AG (“the hand of the President in taking care that the laws of the United States in legal proceedings and in the prosecution of offenses, be faithfully executed,” United States v. Cox, 342 F.2d 167, 171 (5th Cir. 1965) (en banc)) discretion to classify or reclassify ammunition within this rubric; critics could scarcely have picked a worse windmill at which to tilt than the absurd notion that it is executive overreach for the Attorney General to exercise an authority that Congress has explicitly vested in him. This is not the President legislating without legislation; the legislation exists. It has been held in abeyance from a certain subset of bullets by the discretion of the AG, who is now exercising his discretion to expose that subset of bullets to the strictures of the Act.

One may certainly make the argument that the reclassification is arbitrary and capricious, but that is an APA claim, not one of executive overreach in the sense tendered. (To be sure, in one sense one might characterize any 706 claim as being one of executive overreach, but that’s not the sense that the critics intend.) One might also argue that there’s a non-delegation problem too; that’s a tough claim to press, but it’s not inconceivable. But this is not the redoubt on which to make one’s stand against the spectre of “King Barack.” As Justice Jackson put it in the steel seizure case: “When the President [or his hand, the AG] acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring)

The introvert candidate

Just like that, Jeb Bush becomes an interesting candidate to my mind. I can empathize with a fellow functional-introvert.

Milestones

Grayson
 
GRAYSON
 
MMV-MMXV
Frater Sophiae; cattus magnus.
Amatus est; nunc requiescat in pace.
De oculis sumptus,
semper in cordibus
Amavisse est tristitia dulcissima

 

A bootnote on vaccinations and the magisterium

It sometimes happens: A dawning realization that you and your interlocutor are in completely different discussions. My argument in What does the Church really teach about vaccines? was not that the Pontifical Academy for Life’s analysis of the vaccine question was wrong, but rather that it’s incorrect to describe that analysis as “the teaching of the Church,” because PAL doesn’t speak for “the Church.” 1 Not, mind you, that the pope couldn’t assign that authority to PAL, 2 but that he hasn’t. Consequently, since PAL doesn’t have the authority to bind the faithful to its judgment, and in the absence of a binding teaching from an agency or instrumentality that does, the question would seem to revert to the conscience and judgment of the individual Catholic. The upshot is that one may criticize a Catholic antivaxxer as being wrong, but one may not say that she is in dissent on the question. 3

In subsequent discussions with people who hold strong opinions both for and against vaccination, it has seemed to me that my interlocutors have almost uniformly misunderstood not only my point but the discussion into which I’m trying to enter. 4 My position has been taken by pro-vaccination interlocutors as stalking-horse for antivax sentiment, and by antivaxxers as an attack on Catholic morality as to vaccines. This is perhaps understandable since most of the commentary on this question has focused on the merits, that is, on the science and ethics of vaccines, but, truth to tell, I’m not terribly interested in the merits. I’m much more interested in the relationship of magisterium to conscience and how (that is, by what principles or standards) we decide whether the former preempts the latter on any given question.

As I approach that issue, I have in mind two legal concepts that I want to explicitly import into the discussion, because whether acknowledged or not, they frame my way of thinking. The first is the vital distinction between interpretation and construction that we have been taught by Randy Barnett and Larry Solum. 5 Interpretation is the process by which we determine the semantic content of a text. 6 Construction is the process by which we consider whether and how that content applies to concrete situations that go beyond the four corners of that content: Can and should we stretch it to apply to this concrete fact-pattern, and if so, how, how far, and into what shape?

The second is the importance of neutral principles. We must decide questions before us “on the basis of general principles … [that we] would be willing to apply to the other situations that they reach,” 7 that is, “reasons that in their generality and their neutrality transcend any immediate result that is involved.” 8 We cannot approach a question of interpretation or, a fortiori, construction with our eyes fastened on our preferred result in this case, but rather, the “‘instant case must be treated as an instance of a more inclusive class of cases, i.e. [this case] is treated in a certain manner because it is held to be proper to treat cases of its type in that manner.'” 9 

There are some teachings of the magisterium that are so clear on their face that little or no interpretation is necessary; others whence clear, concrete meaning can be extracted from their formulae with the archaeologist’s brush of interpretation. An example of interpretation in this context might be the work that Ladislas Orsy has done unpacking the content of the charism that we label “infallibility.” 10 These teachings yield rules that are determinate, that may be applied directly and immediately to concrete problems. (I outlined the concepts of determinacy, indeterminacy, and underdeterminacy in What does the Church really teach…?)

But there are many questions on which the Church seems to say nothing that is directly on-point. When there is no determinate teaching, and yet there do exist various teachings that colorably bear on the question, perhaps more-or-less remote, perhaps with more-or-less authority, Catholics are inevitably dragged into the construction business. This is true for Protestants, too: If the Bible is the rule for faith and life, then given a problem to which scripture does not speak directly, what is the best answer that is consistent with indeterminate scripture or within the glidepath of underdeterminate scripture? We are inevitably (and perhaps even more necessarily than in law, in which context Judge Easterbrook has cautioned us not to assume that the text must apply 11) trapped in what Larry Solum calls the “construction zone.” 12 When a question resides within that “construction zone,” one has to make up one’s own mind, and so long as the conclusion is within the permissible range of construction, it’s difficult to say more than that a given answer is (in one’s own opinion) wrong. As G.K. Chesterton put it, the walls of Catholic doctrine are the walls of a playground. 13 

There is a fillip to this. When we take positions that go beyond the Church’s teaching, when we sally forth into the construction zone, the answer at which we arrive cannot be projected back into Church teaching. Pro-vaccination Catholics can no more take flight on the wings of “the Church” than antivaxxer Catholics can shelter their judgment under those wings. (Both try.) Once a question has been located in the construction zone, that is, when interpretation has determined that the Church has no direct, binding, on-point teaching, then no matter how imposing an edifice of reasoning one might derive from the Church’s teaching, each person’s conclusion stands alone, naked apart from their own conscience and judgement. Attempts to armor one’s conclusion in the Church’s teaching are unavailing. If I stand on a soapbox and say “the Eucharist is the flesh and blood of Christ,” then I am speaking with the Church. I am articulating the Church’s teaching, and may clad myself in the armor of the Church and her faith and teaching. But if I go on to say “oh, and by the way, UFOs are real,” on that point, I cannot clad myself in the armor of the Church and her faith and teaching, because the Church has no teaching on the existence vel non of UFOs. She has other teachings, perhaps teachings that are relevant to the question; perhaps (dubitante) I have arrived at my opinion on UFOs solely by close and attentive study of and reasoning from the Church’s teaching. I may believe that my position is entirely and obviously the upshot of the Church’s teaching. But no matter how closely-reasoned or sincerely-held, no matter whether actually right or wrong, my position is not found in the Church’s teaching; it ineluctably goes beyond it, and to that extent, notwithstanding that I may think that it derives from the Church’s teaching, I stand alone, my opinion naked before the slings and arrows of the world. 

The UFO example illustrates the point effectively, but in a silly way, and so it may help to give two concrete examples of situations in which the Church’s teaching can supply the materials from which one derives a conclusion, and yet that conclusion cannot be said to be Church teaching. Think of the death penalty: Evangelium vitae teaches that criminal punishment “ought not go to the extreme of executing the offender except in cases of absolute necessity: in other words, when it would not be possible otherwise to defend society.” 14 It doesn’t matter how convinced you are that executing John Doe for crime X meets (or violates) that standard; it doesn’t matter how many statistics or Church documents you can cite in support of your conclusion, and it doesn’t even matter that I agree with you: You still cannot attribute your conclusion to the teaching of the Church. The teaching supplies the standard, but the application to concrete facts, the reasoning, the weighing, and the conclusion are yours. Or think of women in the ministry: Ordinatio sacerdotalis holds that the Church has no authority to ordain women to the priesthood. 15 But what about deacons? The Church also teaches specifically that deacons are not ordained to the priesthood, and although it seems clear to me that the logic undergirding Ordinatio sacerdotalis would extend to the diaconate, one nevertheless cannot say that the Church teaches that she cannot ordain women to the diaconate. 16 It simply isn’t a question that the Magisterium has (yet) settled.

If these analogies seem to be changing the subject, as one (antivax) interlocutor thought, that would seem to confirm that we think ourselves to be in different discussions. The question that I have in view is, again, not the merits of the vaccination debate, but rather the question is where Church teaching gives out and personal conscience must therefore begin. UFOs, female deacons, the death penalty, vaccines—they’re all of a piece, they are applications of the same principle to different facts. If the rationale on which we say that the magisterium decides question X would demand that we say also that the magisterium decides question Y, and if we are unwilling to say that the magisterium decides question Y, we must either confess that it is unsound as to X as well, or else confess that we are failing to apply the rationale neutrally. This becomes more important, not less, when the immediate question is emotive and the temptation to ad hoc reasoning therefore strong.

One antivax interlocutor insisted that what we were really talking about is abortion, perhaps the most emotive question of all. But that’s not correct; even if we were talking about the merits, we would be talking about vaccines. Not abortion. I understand the logic of the argument, which considers poisoned the fruit of the tree that grew from the acorn that fell from the tree that grew from the the acorn that fell from the poisoned tree. 17 But if one takes the Church’s teaching on abortion and reasons from that teaching to reach conclusions about vaccines, that is necessarily construction; I don’t necessarily disagree with the reasoning or the conclusion, on which I neither make nor imply any judgment herein, but one should not confuse that conclusion for the Church’s teaching, or construction of the Church’s teaching (even a persuasive one) for interpretation thereof. All of us have positions on issues that go beyond Church teaching and are, we hope, derived from and consistent with Church teaching. But it would be a terrible error—albeit not a novel error; just think of Joseph Cardinal Bernardin!—to mistake those positions for the teaching of the Church, or to misrepresent them as such, just as we would think it an injustice for other people with contrary (but no less sincerely-held) views on the question to mistake their views for the teaching of the Church and fault us as bad Catholics for not following them. 

At any rate: What I have said here is, to be sure, little more than some observations amounting to a sketch of the issue. But I do think that this is the interesting issue in play, not the merits of the vaccine question.

Notes:

  1. See Simon Dodd,What does the Church really teach about vaccines?, 5 MPA __ (2015), available at http://simondodd.org/blog/?p=1753. Avery Card. Dulles suggested that it would be wise for “the magisterium … [to] avoid issuing too many statements, especially statements that appear to carry with them an obligation to assent. In doctrinal matters, as in legislation, freedom should be extended as far as possible and restricted only to the degree necessary.” Church and Society 24 (2008). The same risk is present, if anything a fortiori, in the proliferation of non-magisterial statements attributed to the mirage of “the Vatican.” Cf. John Allen, All the Pope’s Men 57 ff. (2007). I should perhaps note that the second sentence quoted is a fair summary of my background assumption: That just as there is a normative preference for (and so a presumption of) private ordering that leads us to think about statutory interpretation in terms of whether and to what extent the statute displaces private ordering, so also I assume that the individual has absolute freedom of conscience in interpreting and applying divine revelation save to the extent that the magisterium has intervened to restrict those choices.
  2. Within certain limits, the Church may assign her agents and instrumentalities. But see Ladislas Orsy, The Church : Learning and Teaching 51-52 1987) ( limits of delegation).
  3. To be clear, nothing I say herein passes on the legitimacy of dissent. See, e.g., Instr. Donum veritatis, 82 AAS 1550 (CDF, 1990); Orsy, supra, at 90 ff; John Hardon, Modern Catholic Dictionary 161 (1980). The notion of “dissent” presupposes that there is a teaching from which to dissent, and operates in the realm of the distinct (albeit related) question of the levels of assent due to the ordinary and extraordinary magisteria. My concern here is the antecedent question of whether there is a determinative teaching.
  4. Cf. Simon Dodd, The NSA Programs, 3 MPA 114, 123-24 (2013) (same problem of being caught between two warring factions trying to address an entirely different point).
  5. See, e.g., Barnett, Interpretation and Construction, 34 Harv. J. L. & P.P. 65 (2011); Barnett, The Original Meaning of the Commerce Clause, 68 U. Chi. L. Rev. 101 (2001); Lawrence Solum, Semantic Originalism 67 ff. (2008), available at SSRN: http://ssrn.com/abstract=1120244; Solum, Legal Theory Lexicon: Interpretation and Construction, Legal Theory Blog, Feb. 8, 2009, http://lsolum.typepad.com/legaltheory/2009/02/legal-theory-lexicon-interpretation-and-construction.html; but see, e.g., John McGinnis & Michael Rappaport, Originalism and the Good Constitution (2013). Barnett and Solum credit this distinction to Keith Whittington, and many others have written on the subject, but I learned it from them.
  6. See, e.g., Dodd, Doubt, 4 MPA __, __ (2014) (noting that “[i]t seems that we must have a more precise account of [the word] doubt’s [semantic] content before we can evaluate its utility” and canvassing the range of potential meanings), available at http://simondodd.org/blog/?p=1525.
  7. Kent Greenawalt, The Enduring Significance of Neutral Principles, 78 Colum. L. Rev. 982, 990 (1978).
  8. Herbert Wechsler, Towards Neutral Principles of Constitutional Law, 73 Harv. L. Rev. 1, 19 (1959).
  9. Greenawalt, at 987 (quoting Golding, Principled Decisionmaking, 63 Colum. L. Rev. 35, 40 (1963)).
  10. I have approvingly cited and/or discussed this in several posts: Ordinatio sacerdotalis and its limits, 4 MPA __, __ n.5 (2014); The infallibility question, 3 MPA 1 (2013); The Catholic Proposition, 2 MPA 80, 136 n.122 (2012).
  11. See Frank Easterbrook, Statutes’ Domains, 50 U. Chi. L. Rev. 533 (1983).
  12. See Lawrence Solum, Originalism and Constitutional Construction, 82 Fordham L. Rev. 453, 469 ff. (2013)
  13. Chesterton, Orthodoxy 269 (1909).
  14. EV56.
  15. Ap. ep. Ordinatio sacerdotalis, 86 AAS 545 (John Paul II, 1994).
  16. Cf. Dodd, Ordinatio sacerdotalis and its limits, 4 MPA __ (2014).
  17. Without making or implying any comment on the merits: To be more precise, the argument claims (and I will stipulate) that some components of one or more vaccines ultimately derive from two aborted foeti in the 1950s.

Reflections on Jesus’ mission

We are asked how we would describe Jesus’ mission and message, and whether it has changed since His time.

Since Eusebius of Caesaria’s fourth-century Historia Ecclesiae, it has been commonplace to conceive of Jesus as fulfilling three roles or missions, those of high priest, prophet, and king. No less often, we see an approach focused on those activities which seem to occupy the most time in His Earthly ministry: Healing and teaching. But I have long been persuaded by the Scottish presbyterian Horatius Bonar that this risks seeing Jesus as little more than a special man who performed essentially the same functions as had previous prophets, teachers, and healers, rather than focusing on what is unique to the God-man. Bonar put it this way:

If Christ is not the substitute, he is nothing to the sinner. If he did not die as the sin-bearer, he has died in vain. Let us not be deceived on this point nor misled by those who, when they announce Christ as the deliverer, think they have preached the gospel. If I throw a rope to a drowning man, I am a deliverer. But is Christ no more than that? If I cast myself into the sea and risk myself to save another, I am a deliverer. But is Christ no more? Did He risk His life? The very essence of Christ’s deliverance is the substitution of himself for us—his life for ours! He did not come to risk his life; he came to die! He did not redeem us by a little loss, a little sacrifice, a little labor, a little suffering: ‘He redeemed us to God by His blood’ (I Pet 1:18,19). He gave all he had, even his life, for us. This is the kind of deliverance that awakens the happy song, ‘To Him that loved us, and washed us from our sins in His own blood’ (Revelation 1:5).

“He came to die.” What a line! It grabs you by the lapels and commands that you flee from its repulsive affect or to bow to its inescapable truth. Jesus may be a great teacher, and a healer par excellence, but He is Christ first and foremost. Of course, this isn’t to take away from the importance of His teaching or healing. But it is to underscore that we must understand Him primarily in terms of that which is exclusive to Him: There had been prophets who taught before Jesus, so the Messiah could not be merely a prophet; and there had been healers before Jesus, so the Messiah could not be merely a healer; and Jesus left a Church to continue those ministries of teaching and healing. What is unique to Jesus Himself, and what must therefore be understood to lie at the core of his mission, is Calvary: By His sacrifice of atonement, by His passion, by His cross and resurrection, He has set us free, as Isaiah prophesied He would.

In our assigned reading [Editor's note: N.T. Wright, The Mission and Message of Jesus in The Meaning of Jesus: Two Visions (1999)], Wright underscores that while the Jews of Jesus’ day expected a Messiah, they had in mind a very different kind of Messiah. Mired in Earthly oppression, they were expecting an Earthly liberation. They expected to be set free from the yoke of Rome and its Herodian surrogates; they seemed not to see past the figurative fall of Israel’s babylonian exile to the very real fall of Man in Adam, and they lost sight of God’s real interest, which is not in national borders and whose blood soaks which sand, but rather in the hearts of His most precious creation, Mankind, forged in His own image and likeness, and the relationship that we ruptured in Eden. In the final analysis, humanity is broken at its root—this is the “T” in the popular Calvinist “TULIP” mnemonic, “total depravity,” or “original sin” in the vernaculars of most other Christian traditions—and before any good works in our lives can avail us anything, before any amount of orthopraxy will do us any good, we have to fix our relationship with God. And there’s nothing that we could have done about that before Jesus fulfilled the law on Calvary’s altar. That’s not to say that we don’t need the teaching of Jesus; we can lose our salvation by our conduct, and while it’s arguable that the law and prophets provide a sure guide to avoiding what the Catholic tradition calls “personal” sin (in contradistinction to the afore-mentioned “original” sin), the experience of Israel and the need for Jesus to explain how far afield it had strayed suggests that we must pay attention to his teaching, too. What is essential, however, is the need for Christ’s atoning sacrifice and our need to avail ourselves of it.            

How then should we describe Jesus’ mission? Wright says that “Jesus invited His hearers to repent and believe the gospel.” Yes, but let’s be precise: What was that Gospel, that good news? That through His blood, Jesus would make it possible for us to be reconciled to God, and through our repentance, we can inherit salvation. And that mission is as vital and urgent today as it was then.

[Editor's note: In other words, I am proposing that Jesus' mission is inseparable from the question of who He is, treated here.]

Justification

The design of this blog is quite deliberate. Typography is something that interests me, and I did have in mind, when selecting and customizing the theme, that it should be simple, uncluttered, and readable. For example, it isn’t accidental that the footnotes are a contrasting, sans-serif font. The line-length on this blog should vary from about sixty to seventy characters, which should approach optimal readability. It should be a very crisp black-on-white. Nevertheless, I have come to the conclusion that that justified type is marginally less easy to follow than left-aligned text, so I have changed the stylesheet accordingly.

Space is big, redux

If you’ll recall my 2012 post Space is big, in which I pointed out that the speed of light is actually quite slow and that galactic exploration requires speeds orders of magnitude faster than those claimed in shows like Star Trek,
this video may help visualize the fact. It gives a photon’s-eye-view of a ride out from the Sun at (naturally) the speed of light.

What does the Church REALLY teach about vaccines?

An outbreak of the measles virus has focused attention on a small but growing number of American parents who refuse to have their children vaccinated, citing a variety of medical and ethical concerns. This post is agnostic on the merits of that question. 1 I want to focus on a different and precise point: Whether Church teaching requires Catholics to take a particular position on that question. In an article for the Catholic News Agency, Mary Rezac tells us that the answer is yes:

[T]he National Catholic Bioethics Center (NCBC), a non-profit research and educational institute committed to applying the moral teachings of the Catholic Church to ethical issues arising in health care and the life sciences … , along with the Pontifical Academy for Life ["PAL"]—a Vatican body established to provide information about issues in law and biomedicine—have studied the moral issues surrounding vaccines and have determined that it is morally licit, and even morally responsible, for Catholics to use even those vaccines developed from aborted fetus cells … [PAL] determined that the good of public health outweighs the distanced cooperation in the evil of the abortions performed in the 1960s from which the cell lines were developed. No new abortions have been performed to maintain these vaccines, and no cells from the victims of the abortions are contained in the vaccines.

Currently the vaccine lines for rubella, chicken pox, and hepatitis A are the remaining vaccines that have been developed from aborted fetal cells and for which there is no alternative available.

“One is morally free to use the vaccine regardless of its historical association with abortion,” reads a document from the NCBC based on the findings from [PAL, although the] … document goes on to say that Catholics should express their opposition to vaccines developed from aborted cells, and that there is an obligation to use alternative vaccines, should they exist. 2

If the Church has answered the vaccination question, as Rezac’s headline implies, then Catholics must (we will stipulate) give way. 3 The problem here is that neither the NCBC nor the PAL has the authority to answer the question for the Church, and Rezac identifies no answer from any person or body which does have that authority. 

The magisterium sets out to answer many questions of faith and morals. Inevitably, however, there are gaps. Aside from the obvious case in which the Church simply has no teaching at all, there many concrete questions on which somewhat-applicable magisterial teaching is underdeterminate. Briefly-stated, law is underdeterminate in relation to a concrete case when the sum total of legal rules applicable to that case confine the constellation of possible results but allow for more than one result, requiring the decisionmaker to supply a rule of decision from some other source. 4 “2+2″ is determinate; “2 + x where x is undefined” is indeterminate; “2 + where x ≤ 3″ is underdeterminate. Similarly, the magisterium, or any particular magisterial teaching, may be underdeterminate as applied to a concrete question because, for example, the magisterium may never have pronounced on the precise question at issue, or it may not have promulgated teaching of binding force on the topic, or binding teaching in the general area of the question may be too abstract to provide a rule of decision or so remote that the analogy required to apply it vitiates its binding character. 

When the Church has not spoken on a particular point, or if its teaching is underdeterminate, the question is necessarily remanded to the conscience of each believer to form their own judgment. When we confront an ethical problem, then, the first question is not “what is the right answer.” I have an opinion on vaccines; the anti-vaxxers have opinions on vaccines; I’m sure that the pope has an opinion on vaccines; and those opinions may be decisive as to our judgment if the Church has not spoken on the point. That is the first question: Whether the magisterium has preempted our judgment by promulgating binding teaching on the question. “Does the Church bind the faithful to a particular answer on this question?” And if not, does the Church bind the faithful to a particular inquiry, as she arguably does in, for example, the death penalty, where she does not bind the faithful to a simple yes or no, but instead prescribes the standard by which we must asses individual cases? 5

Nevertheless, although the Church can preempt the faithful and bind them to a particular answer, only the Church can do so. If Father Jazzhands of Rapid City, MI writes an op/ed in which he tells you his opinion on the question, that isn’t the decision of “the Church,” binding on all the faithful. It doesn’t become such even if Father Jazzhands styles it as a decision and claims the authority to do so. Why not? Because the Church has never authorized Father Jazzhands to make that determination. She might: She may, as a general matter, choose the agencies and instrumentalities through which she speaks. But whether or not she has done so is a question one must always ask when facing what purports to be a decision: Even if the promulgating body intends it to be a decision, does that body have the authority to issue that decision?

Neither the Catechism of the Catholic Church nor even the Compendium of Social Doctrine say a word about vaccines. I am unaware of any magisterial authority that addresses the question. And I should perhaps remark that because vaccines are inescapably a novel question, having come into existence only in recent centuries, we should perhaps be cautious about too-readily accepting claims that the Church has provided a binding answer on the subject. 6 

At any rate, the only authority cited by Rezac is PAL. And let’s assume that PAL intended to provide a definitive, binding answer on the vaccine question. PAL does not itself belong to the divine constitution of the Church, and so, if it has authority to answer that question, it must have been given that authority. So which pope gave it that authority? By which instrument? PAL was established by the motu proprio Vitae mysterium, 7 and nothing in that motu proprio confers on it the authority to wield binding, magisterial power. So on its face, Vitae mysterium doesn’t give PAL authority to answer the question. It may fairly be objected, however, that the effect of legislative lacunae depends on the backdrop against which the legislation is enacted. 8 There is no need to specify an attribute that the thing created possesses by its very nature; a curial Congregation, for example, is understood to exercise vicarious authority over the subject matter confided to its jurisdiction, and so we do not find a detailed elaboration of the nature and functions of a congregation in the apostolic constitution Pastor bonus, 9 just assignments of jurisdiction. If in 1994 a Pontifical Academy was ordinarily understood to wield magisterial authority, then PAL would posses that authority unless Vitae mysterium specifically withheld it. Were they? I don’t know. 10 But I would suggest that it is the burden of those who would insist that the teaching is binding to show the basis on which they would preempt the decisions of more than a billion Catholics. 

I understand the desire to invest PAL’s conclusion with an unearned authority. Anti-vaccination sentiment seems to be getting out of control with worrying consequences, and any stick to beat a dog, right? If the Church has preempted the question, that’s a good stick. But overreading PAL’s authority for convenience isn’t a sound position to take, first and most importantly because it’s unprincipled, second because, if taken seriously, it would bind us to every stupid utterance that comes out of any pontifical institution, and third, and perhaps most troubling, it asserts an unjustified power over the consciences of the entire body of the faithful. The question that you have to ask is, by what authority or right may the independence of each believer’s conscience be preempted? A few days ago, I remarked in another context that if your best answer to the question “how do we know X” begins with “Our lady of Y said,” your real answer is “we don’t know X.” In the same way, if the answer to that question begins with the words “[t]he Pontifical Academy of Y” or “the pontifical council for Z,” then it seems to me that the real answer is “we don’t know X.” And both for the same reason: Neither has the power to bind the assent of the faithful. 11 I disagree with the anti-vaxxers on the merits. But by what right or authority would I bind them to a different answer? Symmetrically, by what right or authority would they bind me to their answer? I cannot insist that they are at odds with the Church unless I can show clearly that there is actually a binding teaching with which they are at odds.

Put another way: Rezac’s expert, Dr. Cieslak, can say (and I would say) that “[a]s a Catholic I would argue that it’s a socially conscious thing to do,” so you ought to do it. But if he, or I, or Rezac, or anyone else wants to say that “as a Catholic you have to do it, you foolish anti-vaxxer,” that “you’re not just wrong about this, you’re actually defying the teaching of the Church,” then we had better be able to show the existence, content, and, ideally, the source of that teaching. If you don’t have an authority, all you have is an opinion! And I have no right to demand that someone else change their opinion to match mine, any more than they have a right to demand that I change mine to match theirs.

So what does the Church really teach about vaccines? I think that the safest answer is that the Church teaches nothing at all about vaccines,  as yet, and the question is thus left to the conscience of individual Catholics. 

Notes:

  1. For the record, however, I am not myself agnostic on that question. The “Anti-Vax movement is kooky, and I urge parents to have both children and pets vaccinated. See also Kendall Breitman & Manu Raju, Where 2016 GOPers stand on vaccinations, Politico, Feb. 3, 2015, http://www.politico.com/story/2015/02/ted-cruz-vaccinations-114862.html (last visited Feb. 3, 2015).
  2. Rezac, Measles are making a comeback, so what does the Church teach about vaccines?, CNA, Jan. 29, 2015, http://www.catholicnewsagency.com/news/measles-are-making-a-comeback-so-what-does-the-church-teach-about-vaccines-38175/ (last visited Feb. 3, 2015).
  3. See CCC 2039.
  4. See, e.g., Lawrence Solum, Originalism and Constitutional Construction, 82 Fordham L. Rev. 453 (2013); Randy Barnett, The Original Meaning of the Commerce Clause, 68 U. Chi. L. Rev. 101, 108-110 (2001); Solum, On the Indeterminacy Crisis, 54 U. Chi. L. Rev. 462, 473 (1987).
  5. See Encyc. Evangelium vitae, no. 56, 87 AAS 401, __ (John Paul II, 1995). The binding authority of this teaching is not clear, cf. Antonin Scalia, God’s Justice and Ours, First Things, May 1, 2002, http://www.firstthings.com/article/2002/05/gods-justice-and-ours, but I assume without deciding that it is  binding.
  6. The magisterium is not a batphone; the pope doesn’t call Commissioner God-don for advice. The First Vatican Council helpfully teaches that “the Holy Spirit was promised to the successors of Peter not so that they might, by his revelation, make known some new doctrine, but that, by his assistance, they might religiously guard and faithfully expound the revelation or deposit of faith transmitted by the apostles.” Dog. Con. Pastor aeternus, 6 Acta Sanctae Sedis 40, 46  (1st Vat. Co., 1870). Old doctrine unquestionably applies to new phenomena, but its application to such is likely to be more intricate or analogical than its application to old, familiar phenomena, especially those that existed when the teaching was first given. A degree of caution is therefore warranted, and, I might suggest, ought to be assumed: We should not hastily presume that the Holy See has tromped in where angels have yet to tiptoe.
  7. 86 AAS 385 (JP2, 1994).
  8. See, e.g., Abuelhawa v. United States, 556 U.S. 816, 823 n.3  (2009); Meyer v. Holley, 537 US 280, 285 (2003); United States v. Bailey, 444 U.S. 394, 415 n.11 (1980).
  9. 80 AAS 841 (JP2, 1988).
  10. It seems doubtful. A pontifical academy would seem to reside in the general category of pontifical institutions such as Pontifical Councils and Pontifical Commissions which typically exercise advisory or research functions, and occasionally (as in the Pontifical Commission Ecclesia Dei, for example) delegated authority. Consider that the Pontifical Academy of Sciences is presently headed by Werner Arber, nominally (at most) a protestant. See Wikipedia, https://en.wikipedia.org/wiki/Pontifical_Academy_of_Sciences#President; Wikipedia, https://en.wikipedia.org/wiki/Werner_Arber. Does Dr. Arber ex officio speak for the magisterium? Consider that prior to Humanae vitae, 60 AAS 481 (Paul VI, 1968), there was the June 1966 “final report” the Pontifical Commission on Birth Control, which concluded that contraception was okay. See, e.g., Richard Fehring, An Analysis of the Majority Report “Responsible Parenthood” and its Recommendations on Abortion, Sterilization, and Contraception, http://uffl.org/vol13/fehring03.pdf. Between that report in June 1966 and Humanae vitae‘s promulgation in July 1968, was the teaching of “the Church” that contraception was okay? If you’re going to suggest that the decision of a pontifical institution has the authority to settle the vaccination question, you really can’t avoid getting into the long grass of “why.”
  11. See, e.g., Colin Donovan, Apparitions/Private Revelations, EWTN, 2001, https://www.ewtn.com/expert/answers/apparitions.htm.

Reflections on miracles

Editor’s note: This semester, as last, I am taking a theology class, and to the extent that my written submissions are thought canonical, excerpts will appear here under the TH225 tag after submission and grading. For last semester, see the TH200 tag.

“To [the apostles] He showed himself alive after His passion by many infallible proofs.”
–Acts 1:3.

We consider the significance of Jesus’ miracles.

The words “miracle” and its cognate “miraculous” pose certain challenges; their familiarity and overuse tend to frustrate precision. The broader notion of a “miracle” runs from “[a]n event, whether natural or supernatural in which one sees an act or revelation of God” 1 all the way out to the truly vague, something like “an unexpected event that excites a sense of wonder, especially when its causes are not immediately clear.” This is the sense to which the word “miraculous” answers in common use: When we say that “the pilot made a miraculous landing,” we do not mean to suggest that God was his copilot, but merely that that experience would have anticipated a crash in those circumstances.

The narrower (and I think better) notion of a miracle is a supernatural intervention by God that interferes in the normal operation of the laws of nature. It “cannot be produced by any natural agency but only by the power of God. It is above the natural law, as when one dead is restored to life; contrary to this law, as when Moses caused water to gush from the rock; [and] independent of the law, as when something that might be done by natural causes … is effected without” its ordinary means. 2 It is in the narrower sense that we understand the purpose of the miracles worked by Christ and, by His authority, His apostles. Miracles, the truth of which can be seen immediately, authenticate supernatural revelation, the truth of which may not be seen or grasped immediately. 3

Christianity is irreducibly a supernatural religion. 4 Although we would certainly infer the existence of a god from the evidence available to our senses alone, that is, from natural revelation, a further and supernatural revelation was necessary for us to learn the truths and plans that God wished to communicate to us, which came through the mouths of prophets, inspired writers, and, eventually Christ Himself. 5 Jesus of Nazareth claimed to be the Christ, the promised Messiah of Israel, the very son of the living God. That was a serious claim. But Jesus worked many miracles—miracles in the narrow sense described above, and “[m]iracles impress people” because they “can only be worked by God, since they imply a supernatural intervention in the course of nature.” 6 Whatever He did that might cause his contemporary critics to doubt—that man eats with sinners and tax collectors! He ignores the ritual law! He’s super-judgmental about divorce! 7—He surely fulfilled any demand that He give them some kind of sign to authenticate His testimony. 8 What was the skeptical pharisee supposed to do, faced with His lengthy catalog of miracles? 9

Miracles demand faith. When we confront an event that stands in violation of the laws of nature, we must either deny it, or accept the supernatural and all that it implies. Thus, says the Baltimore Catechism, by His miracles, Jesus “proved that whatever He said was true, and that when He declared Himself to be the Son of God He really was what He claimed to be.” 10 His miracles force us to make our choice, to confront in the starkest terms that all-important question that He asks each of us: “Who do you say I am?” 11 Well: Could a lunatic have restored the sight of the man at Bethsaida? Could a liar have raised Lazarus—and, indeed, Himself? 12 By His miracles, i.e. supernatural acts, Jesus, and later the apostles, authenticated the supernatural revelation of the New Covenant. 13

The alternative is to simply deny the miraculous. “As a firm and unalterable experience has established these laws [of nature], the proof against a miracle, from the very nature of the fact, is as entire as any argument from experience can be.” 14 If one reaches such a conclusion, it might be better to abandon faith entirely than soldier on in search of an ersatz Christianity sine supernaturali, 15 because if one rejects the miraculous, questions naturally arise: If the miracles were fake, by what other means can one authenticate Jesus’ testimony? And: If the miracles were fake, does that not make our Savior a charlatan? 16) And: If God cannot intervene supernaturally, to what kind of debased, devalued “god” have we reduced him? So, as it turns out, denying the miraculous also forces us to make our choice: Do we, or do we not, believe in an almighty God, by the sweat of whose brow the very foundations of the Earth were forged? If so: “Granted the existence of Almighty God, since He could create the universe and establish its laws, there is no reason why He cannot alter its course and interfere with its laws” at his pleasure. 17 And granted that power, does it not stand to reason that He should do so when such testimony might seem useful to convince? 18

What I have said—that miracles are primarily means by which revelation was authenticated—accords with our modern experience in which genuine miracles are frequently-claimed and yet rarely-seen. The “miracle” of a football that seems to change its PSI from play to play in the favor of one’s preferred team does not require supernatural intervention, and concision of reasoning might attribute a more straightforward and prosaic cause. And there is something rather dangerous, it seems to me, in relying on such experiences; I am skeptical of the “charismatic” movement, which, it seems to me, places people at risk of disillusionment and loss of faith by placing excessive emphasis upon expectations of “miracles” that may either not happen or may prove to be false. This should not be taken to deny the possibility of miracles in everyday life, or to discourage praying for miracles. Miracles do happen. But placing excessive emphasis or expectation on routine miraculous intervention in modern life would seem to risk a fragile faith that constantly puts God to the test, 19 and which is lives under a sword of Damocles lest the seemingly-miraculous prove more to have a more prosaic explanation.

Notes:

  1. 3 The Interpreter’s Dictionary of the Bible 392 (Buttrick, ed. 1962).
  2. The New Catholic Dictionary 633 (Pallen & Wynne, eds. 1929); accord Charles Journet, The Meaning of Grace, ch. 4 (1957), available at http://www.ewtn.com/library/DOCTRINE/MNGGRACE.HTM (all web resources herein cited as last visited Jan . 23, 2015).
  3. See, e.g., Catechetical Instructions of St. Thomas Aquinas 6 (Collins, trns. 1939); St. Augustine, Civ. D. lib. 22 c.5; Encyc. Satis cognitum, no. 8, 28 Acta Sanctae Sedis 708, 717-17 (Leo XIII, 1896); J.P. Boyce, Abstract of Systematic Theology ch. 3 (1887) (“But as God usually acts through means, so he has revealed himself to a few, and through them to mankind in general. The only question then is, how can he give evidence to the race at large that the men he has inspired are indeed his messengers? This also might be done in various ways, but he has chosen to do it by attesting their mission by miracles wrought through them”), available at http://founders.org/library/boyce1/ch3; Edgar Young Mullins, Freedom and Authority in Religion 18 (1913)
  4. See, e.g., James Orr, The Christian View of God and the World  (9th ed. 1908).
  5. See Charles Coppens, A Systematic Study of the Catholic Religion 2-3 (1907). The First Vatican Council teaches “that God, the source and end of all things, can be known with certainty from the consideration of created things, by the natural power of human reason: ever since the creation of the world, his invisible nature has been clearly perceived in the things that have been made.” But God has nevertheless “reveal[ed] Himself and the eternal laws of his will to the human race by another, and that a supernatural, way. This is how the Apostle puts it : In many and various ways God spoke of old to our fathers by the prophets; but in these last days he has spoken to us by a Son. It is indeed thanks to this divine revelation, that those matters concerning God which are not of themselves beyond the scope of human reason, can, even in the present state of the human race, be known by everyone without difficulty, with firm certitude and with no intermingling of error.” Dei Filius (Dogmatic constitution on the Catholic faith), ch. 2 (1st Vat. Co., 1870), available at http://www.ewtn.com/library/councils/v1.htm.
  6. Matthias Premm, Dogmatic Theology for the Laity 139 (Heimann, trns. 1977).
  7. Mt 9:11; Lk 11:38; Mt 19:8.
  8. See, e.g., Jn 3:2; but see Mk 8:11.
  9. See, e.g., John Hardon, Modern Catholic Dictionary 352-353 (1966) (cataloguing and classifying Jesus’ miracles).
  10. Balt. Cat. q.325.
  11. Mt 16:15.
  12. See C.S.Lewis, Mere Christianity 54-56 (1952).
  13. See, e.g., Jason Jackson, Miracles in the Book of Acts, Christian Courier, https://www.christiancourier.com/articles/1197-miracles-in-the-book-of-acts. In his masterwork L’Eglise du Verbe Incarné, Charles Card. Journet develops a persuasive account that distinguishes the extraordinary and truly apostolic charisms, such as the working of miracles, which did not transfer to the successors of the apostles, from the ordinary episcopal charisms, at first submerged in the former, which did. See 1 Charles Journet, The Church of the Word Incarnate 127-148(Downes, trns. 1955).
  14. 3 Interpreter’s Bible, supra note 1, at 395.
  15. Cf. Heinrich Fries, Fundamental Theology § 36 (Daly, trns. 1996); Richard McBrien, Catholicism 339 ff. (3d ed. 1994).
  16. The aphorism attributed to Arthur C. Clarke is that any advanced technology may appear as magic—or miracle—to those unfamiliar with it; strip Jesus of the capacity to work miracles and yet leave him the miraculous claims and you transform him from messiah into the proverbial Connecticut Yankee in King Arthur’s Court.
  17. New Catholic Dictionary, supra note 2, at 633.
  18. The alternative, it seems to me, amounts to simple capitulation to “that doctrine of rationalism or naturalism—utterly opposed to the Christian religion, since this is of supernatural origin … [which] has plunged the minds of many into the abyss of pantheism, materialism and atheism.” Dei filius, supra note 5, c.7.
  19. Cf. Mk 4:12.

For the record: Netanyahu’s visit

Congress, which disagrees with President Obama’s policy on Iran, has invited the Prime Minister of Israel, Benjamin Netanyahu, who also disagrees with Obama’s policy on Iran, to speak before a joint session. 1 Among other commentary, Michael Ramsey, whose 2001 article with Sai Prakash, The Executive Power over Foreign Affairs, gives him unimpeachable originalist credentials on this point, has concerns that Congress’ invitation is unconstitutional, exceeding its enumerated powers and intruding on the President’s general, residual authority over foreign affairs. 2 Adam White, another lawyer in FedSoc orbit of some repute (albeit less well-credentialed in this area than Ramsey), disagrees, acknowledging that Ramsey’s points have force, but perhaps less weight than Ramsey thinks. 3

So far as the constitutionality of the invitation, I am not persuaded by either position. Like David Bernstein, I am content to answer “maybe.” 4 I can leave that question unresolved here because I conclude that even if Ramsey is wrong that the invitation is unconstitutional, it is at least illicit and improper, for the reasons that Ramsey identified in his 2001 article, and that determination is outcome-determinative here. Foreign affairs are generally an executive responsibility, and it is improper for Congress to extend such an invitation over the President’s disagreement, even if it has the power to do so. 5 Like Reihan Salam, I admire Netanyahu and I don’t like Obama’s foreign policy, and so it pains me to say this, 6 but Obama is President, and as such, it is for him to make this kind of foreign-policy determination, even when I disagree with that determination. 

Netanyahu did nothing wrong by accepting the invitation, and Congress cannot now rescind that invitation without it being perceived as a slight, but it should not make such invitations in the future.

Notes:

  1. See, e.g., NYT slams Republicans for inviting Netanyahu to address Congress, Haaretz, Jan. 24, 2015, http://www.haaretz.com/news/diplomacy-defense/1.638740; Patricia Zengerle, Invitation to Netanyahu to address U.S. Congress: When bipartisan means partisan, Reuters, Jan. 23, 2015, http://www.reuters.com/article/2015/01/23/us-israel-usa-congress-idUSKBN0KW2H520150123 (all cited web resources as last visited Jan. 29, 2015.
  2. Ramsey, Is Netanyahu’s Address to Congress Unconstitutional?, The Originalism Blog, Jan. 25, 2015,
    http://originalismblog.typepad.com/the-originalism-blog/2015/01/is-netanyahus-address-to-congress-unconstitutionalmichael-ramsey.html; accord Peter Spiro, Is Boehner’s Netanyahu Invite Unconstitutional?, Opinio Juris, Jan. 22, 2015, http://opiniojuris.org/2015/01/22/boehners-netanyahu-invite-unconstitutional; see generally Prakash & Ramsey, Executive Power over Foreign Affairs, 111 Yale L.J. 231 (2001); American Ins. Assn. v. Garamendi, 539 U.S. 396 (2003).
  3. White, The Constitution Doesn’t Let President Close Congress’s Doors to Israel, Weekly Standard Blog, Jan. 26, 2015, http://www.weeklystandard.com/blogs/constitution-doesnt-let-president-close-congresss-doors-israel_824707.html.
  4. see Bernstein, Is Netanyahu’s address to Congress unconstitutional?, The Volokh Conspiracy, Jan. 25, 2015, http://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/01/25/is-netanyahus-address-to-congress-unconstitutional.
  5. Cf. Doe v. Bolton, 410 U.S. 179, 222 (1973) (White, J., dissenting).
  6. Cf. Salam, Netanyahu’s Visit and the Executive Power to Receive Foreign Leaders, The Corner, Jan. 28, 2015, http://www.nationalreview.com/corner/397396/netanyahus-visit-and-executive-power-receive-foreign-leaders-reihan-salam. When writing at SF, I often pointed out that the very best time to articulate and stand on a constitutional principle is when it cuts against one’s immediate interests and preferences to do so, because that is a vouchsafe that it is truly the principle that has dictated the outcome. When the Supreme Court took the Noel Canning case, for example, I was able to say that the President’s recess appointments were invalid without fear of being thought partisan, because I had a record of criticizing the Constitutionality of such recess appointments that dated back into the Bush Administration.