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.
- 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. ↩
- 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). ↩
- 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. ↩
- 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). ↩
- 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. ↩
- 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. ↩
- Kent Greenawalt, The Enduring Significance of Neutral Principles, 78 Colum. L. Rev. 982, 990 (1978). ↩
- Herbert Wechsler, Towards Neutral Principles of Constitutional Law, 73 Harv. L. Rev. 1, 19 (1959). ↩
- Greenawalt, at 987 (quoting Golding, Principled Decisionmaking, 63 Colum. L. Rev. 35, 40 (1963)). ↩
- 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). ↩
- See Frank Easterbrook, Statutes’ Domains, 50 U. Chi. L. Rev. 533 (1983). ↩
- See Lawrence Solum, Originalism and Constitutional Construction, 82 Fordham L. Rev. 453, 469 ff. (2013) ↩
- Chesterton, Orthodoxy 269 (1909). ↩
- EV56. ↩
- Ap. ep. Ordinatio sacerdotalis, 86 AAS 545 (John Paul II, 1994). ↩
- Cf. Dodd, Ordinatio sacerdotalis and its limits, 4 MPA __ (2014). ↩
- 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. ↩