Of Rents and Their Healing

Albert Nolan makes the case in Jesus before Christianity that Jesus's original message was the urgent need to heal the rent — the tear, the rift, the splitting or separation — in the social fabric of his time and place.

Among the Jews in 1st-century Palestine, the vast majority were poor, oppressed, afflicted, and for these and other reasons considered "sinners" by the tiny middle and even tinier upper classes. Their "sins" may have arisen simply because they were illiterate and uneducated, unprepared to interpret and follow God's complex laws, and accordingly fated to be punished by God. Alternatively, their "sins" may simply have rubbed off on them from "unclean" family members or even from wayward ancestors several generations back.

Jesus's heart went out to these "sinners," in deep compassion for their suffering — particularly since he, like John the Baptist before him, foresaw that yet worse things would befall the helpless of Israel when a soon-to-come revolt against Roman rule failed and Jerusalem and its Temple fell once and for all.

First and foremost, Nolan says, Jesus set about to heal Israel by preaching against the rent in its social fabric and the false presuppositions about "sin" that underlay it. When, for example, he excoriated the well-educated scribes and well-off Pharisees as he so frequently did, he was challenging the narrow-mindedness of the privileged classes which thwarted the needed social healing.


It strikes me that the need to heal rents caused by intolerance and injustice generalizes to any time and place, including our own. Indeed, this may be why Jesus said that "the poor you will always have with you." There will never be a time and place, in other words, where oppression of the have-nots by the haves is absent.

As Nolan makes clear, to be "poor" in Jesus's world was not primarily a matter of money, though it was that, too. More than a lack of money, though, it had to do with having no status, no dignity, no respect ... no "face," as the Chinese would say.

That loss of dignity translated into what we would today call personal dysfunctionality. It even led to physical illnesses of what we might label a psychosomatic variety. We hear a lot in the Gospels about Jesus healing the sick and casting out demons. When people are scorned and hopeless, they suffer in more tangible ways as well. Jesus knew that.


The key word in the above is "compassion." Jesus, according to Nolan (p. 36), "set out to liberate people from every form of suffering and anguish — present and future." He set out to heal them as individuals and to heal Israel as a nation. In order to do so, he went so far as "to become an outcast by choice" (p. 34, italics in the original). He took compassion, which at bottom is "a response to suffering" (p. 36), to the max.

Implicit in the idea that people's suffering and anguish are intolerable, when due to the ignorance and oppressiveness of others, is the notion that healing, forgiveness, and solidarity are the deepest, most profound, most blessed of values. They couldn't be called "Christian" at the time of Jesus, since the advent of Christianity as we know it was still decades away. But today we can legitimately call forgiveness, healing, and solidarity the truest Christian values of all.


Realizing this is so both does and doesn't come as a surprise to me.

It doesn't come as a surprise inasmuch as there are lots of "factoids" in the Gospels that show Jesus as being sympathetic to the poor. Christians are, after all, taught to be charitable and kind. Mother Teresa was, after all, a major role model.

It does come as a surprise, however, to imagine that forgiveness, healing, solidarity, and social harmony and unity are the principal Christian teachings. Those ideas — which may be summed up by the phrase "social justice" — are not what we hear the most about from the pulpit today!

Michel Foucault on Sex

If yesterday I woke up snarky and bitchy, today I woke up horny ... uh, make that sex-minded. That's not unusual for me — or, I assume, for anybody else — and it got me to wondering about how freedom of sexual expression can possibly go along with the spirit of solidarity.

Classically, among the reasons we rein in our sex drives is not to have the world become a cauldron of sexual jealousy. What can be more divisive of a community than to have it become a Peyton Place? (For you younger folks, that's a reference to a "scandalous" novel from the 1950s, by Grace Metalious, in which the denizens of a supposedly staid suburban community were secretly sleeping with one another.)

Michel Foucault

Crossing my mind was the name Michel Foucault, the late, influential French philosopher whose importance is summarized by Wikipedia here. Foucault challenged a slew of fundamental assumptions most people make about what's going on here in this world. One of them was the common assumption that the modern West has been beset by a regime of sexual repression since about the 17th or 18th century.

Foucault said au contraire. According to Modules on Foucault II (which I'll refer to as "MoF II") in refuting the "repressive hypothesis" Foucault held that all the so-called "repression" actually transmuted into "a steady proliferation of discourses concerned with sex — specific discourses, different from one another both by their form and by their object: a discursive ferment that gathered momentum from the eighteenth century onward."

(Another common assumption Foucault disputed was that we each have a fixed personal "identity." For him, identity was free-floating, "more of a performance given to the world," according to this web page. I disagree. I think the most basic parts of our identity, once they're established, never change. See The Structure of Personal Identity. I don't, however, mean this fatalistically. People can change what they are. They just can't change who they are.)


At any rate, Foucault didn't much believe in a fixed anything. Instead, he believed in the applications of "power" that are signified most especially by and through our "discourses." These applications of power, these discourses of ours, shift. They're in flux over time. So it makes no sense to Foucault to ask how much power so-and-so has, as if power were an intrinsic part of that person's self. Rather, ask how one is presently using power — claiming it, principally by means of one's discourses.

So the "discursive ferment that gathered momentum from the eighteenth century onward" with respect to sex has really been the history of a sort of changing power relationship manifested as much by all that is said and written — our discourses — as by what we actually do.

MoF II says, "Far from silence, we witness 'an institutional incitement to speak about [sex], and to do so more and more; a determination on the part of the agencies of power to hear it spoken about, and to cause it to speak through explicit articulation and endlessly accumulated detail'."

I assume that by "agencies of power" Foucault means all such agencies, not just governmental ones. For example, the popular media. (I recently was exposed in an auto shop waiting room to a Maury Povich TV show where the fun revolved around learning which of an endless procession of male possibilities was the actual, DNA-tested father of a woman's child.)

Still, even if government was not always intentionally front and center in bringing on all the back-and-forth about sex, "the effect of all this rational discourse about sex was the increasing encroachment of state law into the realm of private desire: 'one had to speak of [sex] as of a thing to be not simply condemned or tolerated but managed, inserted into systems of utility, regulated for the greater good of all, made to function according to an optimum. Sex was not something one simply judged; it was a thing one administered'." Anyone care to discuss whether gay marriage ought to be legal?


I interpret all this as meaning that (whatever does or does not go on between the sheets these days) we all have this compulsion to communicate about sex. Talk about it. Hash out its rights and wrongs. Condemn those who don't agree or don't live up (or down) to our standards.

Not to mention, we have this urge to confess what we do, supposedly in private — not just to a priest (in that kind of power relationship) but right up there on the national TV screen to Maury or Dr. Phil or whoever.

I'm against all this. That was really my main point in an earlier post, Hooray for Hypocrisy!. In it, I complained of (a) people today being mainly interested in self-gratification and (b) people being not the least bit hypocritical about admitting (a).

I won't try to argue the self-gratification point here. But the idea that people are not the least bit reticent to talk about or otherwise communicate (tattoos, visible bra straps, navel exposure) their sexual attitudes goes right along with Foucault. It's as if his comments (he died in 1984) have been amplified through a cultural megaphone in the last two decades.


I basically don't get it. I admit that. Why all the incessant harping on sex, which used to be something done behind closed doors and never advertised — or so I thought?

MoF II says, "Our continual call to speak of sexuality in the present age (on television, in popular music, etc.) is, therefore, not significantly different from the ways state power imposed its regulations in the eighteenth and nineteenth centuries: through the continual demand for discourse."

OK, I sort of see that ... as long as Foucault was not trying to say that state power has been applied in such a way as intentionally to turn up the volume on sex talk. To me, since you never turn on C-SPAN and hear Congresspersons urging more, uh, congress, it would seem to be the exact opposite. The state and other institutions of formal power (say, the office responsible for implementing the Hollywood Production Code of yore) would seem to have tried their mightiest to quash all the sex talk (if movies, rap, etc., qualify as talk).

To me, all the present sex talk represents an insurgency against these erstwhile agencies of censorship. It's as if people in general have claimed their power by using the topic of sex basically as a wedge issue in the requisite discourses.


MoF II goes on: "Foucault also argues that censorship is not the primary form through which power is exercised; rather it is the incitement to speak about one's sexuality (to experts of various sorts) in order better to regulate it."

That would seem to confirm what I just said. If power is now being expressed via "incitement" rather than its opposite, censorship, then where is this incitement coming from?

From the very institutions of power that ostensibly try to stifle sex, Foucault says, in what seems to me quite a subtle point.

(I note in passing, by the way, that "to speak about sexuality to experts of various sorts" is an umbrella phrase that covers what goes on in the confessional as well as what goes on on national TV.)


My "hypocrisy" post made it clear (I hope) that I'm big on silence when it comes to sex. Foucault had this to say about silence about sex, according to MoF II:

Silence itself — the things one declines to say, or is forbidden to name, the discretion that is required between different speakers — is less the absolute limit of discourse, the other side from which it is separated by a strict boundary, than an element that functions alongside the things said, with them and in relation to them within over-all strategies.... There is not one but many silences, and they are an integral part of the strategies that underlie and permeate discourses.

Well, if silence is itself a discourse, what isn't a discourse? I worry about philosophers who start using a word like "discourse" to describe a category of thought and eventually lead you to believe that nothing is not in that category, even stuff that would seem to be its direct opposite.

But that's not really what's going on here, in Foucault's discourse. Foucault's point was really that enforced silence really just encourages prolixity:

Foucault gives the example of eighteenth-century secondary schools. Sex was not supposed to be spoken of in such institutions; however, for this very reason, one can read the preoccupation with sexuality in all aspects of such schools: "The space for classes, the shape of the tables, the planning of the recreation lessons, the distribution of the dormitories..., the rules for monitoring bedtime and sleep periods — all this referred, in the most prolix manner, to the sexuality of children."

But isn't that just a rewording of the classic complaint about regimes of sexual repression: that the really foster resistance? They function like the command "Don't think of an elephant!" to produce the exact opposite state of affairs.

No, I don't want people to be forced to stop all the sex talk. I just wish they'd abandon it on their own. Maybe if there was a return to sexual mystery, not so many men would need to spend their money on Viagra.

Plus, maybe if we were voluntarily mum about sex, we'd be able to gin up a jealousy-free zone for the furtherance of the spirit of solidarity in our society.

The Structure of Personal Identity

Today I woke up feeling snarky, bitchy, apt to find fault with anyone I set eyes on. In a word, full of hostility. (I know, I know ... that's three words.)

I drove out to Lake Elkhorn for a morning constitutional — twice around, 50 paces running, 50 walking. The two laps took an hour. By the time I was done at a little before 10 A.M., the temperature was already approaching 95°. But I felt better.

On the way home, I wondered what makes me feel so hostile sometimes.

The first thing I came up with was that the stuff other people do that I don't like — even if they "do" these things only in my imagination — is stuff that I try not to admit I'd be doing if I wasn't such a "good person." Did that so-and-so cut me off in traffic out of his own general antisocial nature, or just out of not giving a damn? Either way, it's something I don't have to visualize myself doing ... as long as I can project all the fault on him.

Then, just as I was congratulating myself for being so insightful, another, deeper insight came along. The insight was this: it all has to do with identity.

That guy who cut me off ... he's a total stranger. He's not someone around whom I build any part of my personal identity. I'm equally alien to his identity structure, and my knowing this is why it's so easy for me to imagine him blowing me off on purpose as he lane jockeys to his heart's content down Route 29.

We all have identities, a fact which comes as no surprise. What does come as a bit of a surprise, at least to someone as slow on the uptake as I classically am, is realizing how crucial other people are to our individual identities.

That's why I call each person's identity a "structure." We construct our identity — each one of us, starting from day one of our lives — through our relationships.

At first, it's relationships with family members — mother, primarily, at the outset; then father, brothers and sisters, members of the extended family, and so on — that help us define in our own minds who we are. Then come people from the neighborhood and wider community outside the home. Then come our age peers in school. By the time we are adults, we ideally have constructed a well-formed, well-rounded identity structure which will serve us well as we branch out into the world.


Family ties are so crucial. That's a (to me) subtle lesson I've learned from one of my favorite series of novels, the Joe Leaphorn/Jim Chee mystery stories by Tony Hillerman. Leaphorn and Chee, Hillerman's protagonists, are Native American detectives serving on the Navajo Tribal Police in New Mexico.

Leaphorn is impatient with the old tribal ways, but they still exert a pull on Chee. Often, in the course of his investigations, he visits a traditional Navajo family at home. The etiquette requires that both parties spend the first several minutes, if they are strangers, laying out their respective family trees. This is not just to determine if they have relatives in common, though it is that, too. It is also a recognition of the fact that one person cannot convey his or her identity to another without giving the basic template of that identity's structure: the person's nuclear and extended family.

When I taught freshman English and the University of Maryland, I assigned a you-pick-the-topic essay. I asked the students one by one to announce in class what they'd be writing about, and why. One young woman, mentioning that she was an adoptee, said she would discuss the importance to her of locating her birth mother. I was caught by surprise, since I hadn't really expected students to pick topics of personal emotional importance. When I questioned her about that, she was adamant; this was the topic she wanted to address.

Looking back, I now realize that to her, her very identity was at stake at a vital point in her life. One obviously draws part of one's sense of identity from one's birth mother, even if one has yet to meet her.


I'd say the father is equally important as the mother, if not right away. At some point in a child's development, he or she will wind up with a stunted or lopsided identity structure if "Dad" isn't there and doing his job.

The late guru of myth Joseph Campbell always made a big deal about sons' initiations into male society via the father and his male associates, a rite of passage which involves radically severing the apron strings tying the boy to his mother. (I'm not quite sure how applicable this process is to daughters, I admit.) I'm also aware that, according to psychiatrists, men with ingrained criminal tendencies, when interviewed in prison, typically are found to pretty much worship the ground their mothers walk on. Mom is usually the only person the male criminal would not cheat or rob.

Putting both of these observations together, I surmise that (at least for boys) it is absolutely crucial, at a certain age, that "Dad" get built into a child's developing identity structure.

How surprising is it, then, that fatherless, broken homes in the inner city so often produce boys that join gangs as soon as they can and get into trouble? The gangs become prostheses, as it were: fake identity structures that will have to do since "Dad" is long gone.


Identity structures are yet more complex, though. At some point, each young person will need to fit into a community. Translation: the community will become part of his/her identity structure. This is what it means to "have a good name": to be able to fit into the community and be accepted by it.

If someone is not deemed acceptable to the community at large, he/she may (again) develop a stunted or lopsided identity structure.

The perpetrators of the recent "transit bombings" in London were apparently Muslims from "South Asia," which I assume means Pakistan. According to news coverage, second-generation Pakistani men in Britain feel alienated, unaccepted by the white Britons. Out of this alienation seemingly came the willingness to kill total strangers and sacrifice one's own life in doing it.

In the terms of this discussion, these suicide bombers seem to have had a stunted, lopsided identity structure because they weren't able to patch their individual identities into that of the broader community, at the point when that process was supposed to occur in their young lives.

We are who we build into our identity structures in our youth, and if the construction process doesn't go right, there'll be hell to pay.

Rededication: To Solidarity, Above All

Martin Scorsese in My Voyage to Italy

Martin Scorsese says at one point in his documentary film My Voyage to Italy, quoting the great Italian filmmaker Roberto Rossellini, "People today only know how to live in society, not in community. The soul of society is the law. The soul of community is love."

For me, the word community implies the Christian ideal: communion. All of us together, sisters and brothers in the body of Christ. A reign of unshakeable fidelity, humanity, and solidarity.

Not to sound pompous, but I hereby rededicate this blog to fortifying my personal search for that spirit of solidarity.

For the awful truth is, although the idea of compassion and human solidarity moves me deeply whenever I am put into a position of having no other choice but to confront it, I soon enough set it aside again in favor of other, less challenging claims on my allegiance.

At bottom, this problem — which of course I am far from alone in — is one of dishonesty. Or, rather, it amounts to an aversion to looking at the human predicament through the eyes of absolute honesty. When I squirm aside and look the other way, as I typically do, I simply don't see the suffering, heartbreak, and pain in the world.


When I watched Mr. Scorsese's self-presented documentary on DVD, or for that matter when I viewed his earlier A Personal Journey With Martin Scorsese Through American Movies, I was struck by the man's gentleness onscreen, the wideness of his mercy. This, from the director that has given us such violent films as Taxi Driver and Raging Bull.

Most of the Italian and American films Scorsese extols as influences on his own work are dark and gritty. Typically, they have been called subversive. When Rossellini made The Miracle, a segment of his L'Amore (1948) in which a mad woman gives birth to a child she believes is the Christ child, Catholic officials denounced it as a blasphemous parody. But, as Scorsese shows, it communicates "something very elemental about the nature of sin."

"It's a part of who we are," Scorsese goes on to say, "and it can never be eliminated. For him [Rossellini], Christianity is meaningless if it can't accept sin and allow for redemption. He tried to show us that this woman's sin, like her madness, is nothing in comparison to her humanity."

Rossellini, by filming this story about the redemption of a despised outcast and the miraculous nature of the life she gives birth to, showed us all the need for compassion and solidarity — and Catholic Church officials didn't get it.


What was it that they didn't get? Albert Nolan, a provincial for the South African Province of the Dominicans, wrote in his book Jesus before Christianity, "The one salutary effect of this moment in our history, its one redeeming feature, is that it can force us to be honest."

He was writing from a time, 1976, when the nuclear standoff between the superpowers made the destruction of the world a real possibility. But it was also a time, like now, when the world's rich were getting richer and the poor were getting poorer, there was widespread disease and starvation, and the sustainability of the planet's natural resources was in doubt.

In short, there was much suffering ... and it might well get worse.

The "subversive" films that Martin Scorsese makes and the ones by other filmmakers that he loves the best also "force us to be honest" — about suffering, about inhumanity, about despair, and most of all about the dangers of hiding our heads in the sand and not acknowledging all of the aspects of the human condition, both beautiful and ugly. For these are aspects we all share, in our common humanity, and our refusal to look at some of them is a dishonesty we cannot really afford.


In Jesus's day, Nolan points out, a great many Jews in Israel were treated by their fellow Jews as lepers, as demon-possessed or worse, simply because they were poor and "obviously" existed outside God's favor. These unfortunates were seen as positive dangers to an Israel already living under the yoke of Roman occupation: signs that God was angry with the Jews, and that Roman enslavement was their just desserts. The poor whom Jesus so conspicuously befriended were, in a word, scapegoats.

Thus was Jesus's primary message, Nolan says, one of solidarity. God is never a God of exclusion and social bifurcation, of shunning and despisal of the poor and the different. That above all was what Jesus taught us, says Nolan, by his words and by his deeds.

That's why I think it wrong to censor (or self-censor!) our solidarity with our brothers and sisters through scapegoating their supposed sins, or simply by remaining stony-faced to their manifold sufferings.

It's why I think it wrong for us to get so wrapped up in our debates about who gets to determine the laws our society lives by — for instance, ought gay marriage to be legal? — that we lose compassion for those dying of AIDS. Laws are only the "soul of society." What of the "soul of community," love?

And it's why I want to dedicate this blog henceforth to countering my own long-ingrained habit of resisting full honesty about what it's really like for all of us to be ... alike. So, herein, I'll be trying to learn to see the world through eyes more like Martin Scorsese's or Albert Nolan's than the ones I have right now.

Harry Potter: A Subtle Seduction?

Harry Potter

There are lots of things in this world I simply don't get — one of which being Pope Benedict XVI's objections to the Harry Potter books (see "Report: New pope pans Potter" at the CNN.com International website).

"It is good that you enlighten people about Harry Potter, because these are subtle seductions which act unnoticed and by this deeply distort Christianity in the soul, before it can grow properly," Benedict wrote to Gabriele Kuby, who has written a book called Harry Potter — Good or Evil?.

The full text of the pope's two brief letters to Ms. Kuby, a supposedly "devout Catholic," may be read here. They were written in 2003 while the pope was still Cardinal Ratzinger.

My problem is, I don't see how stories of personal heroism in which the protagonist, young Harry, is called upon to resist the evil inherent in his powerful antagonist, Lord Voldemort, "deeply distort Christianity in the soul." Where is the "subtle seduction" in fighting evil?

It's not as if Harry thrusts himself forward with an eye to personal glory. Just the opposite. He fully realizes that his adventures force him to violate the rules set out for him and his fellow students at the Hogwarts School of Witchcraft and Wizardry. He completely grasps the perils of using the magic he as yet so little understands. But he seems to find that destiny won't let him stand idly by while malignity prevails, menacing the very order of life and every innocent soul beholden to it.

What could be more Christian than that — to put oneself at the greatest risk to save others?

Roe, Casey, and Originalism

John Roberts

President Bush's nomination of appellate judge John G. Roberts Jr. to fill the vacancy left at the U.S. Supreme Court by Sandra Day O'Connor's retirement is provoking interesting op-ed commentary, including "Search for 'original intent' leads to constitutional confusion," published by The Baltimore Sun on July 21, 2005.

In it, Tim Baker and Emily Baker, a father and daughter, write of Roberts as if he is wedded to the doctrine of constitutional interpretation called "original intent," or, if not that, the closely related one called "originalism" or "textualism."

Tim Baker is a former U.S. Attorney for the State of Maryland and law clerk for Supreme Court Chief Justice Warren E. Burger. His daughter, Emily, studies constitutional law at the University of Maryland, Baltimore County. "If, as expected, Judge Roberts is an originalist," they aver, "he will join Justice Antonin Scalia and turn to history, demanding that courts sing from that hymnal. But the voices of the past often sang from different pages."

What is that supposed "hymnal" from which today's originalists/textualists claim to sing? At the very least, it is "the meaning upon which the people originally agreed when they democratically adopted a provision" of the U.S. Constitution, as amended.

The doctrine of "original intent" takes originalism a subtle step further: "to ascertain the meaning that the framers had in mind." That is, where originalism per se "eschews any attempt to ascertain the framers' subjective states of mind and focuses instead on the text itself, giving it the objective meaning that reasonable people would commonly have understood at the time of its ratification," original-intent proponents want to know what the framers were actually thinking.


I find two problems with the Bakers' analysis. First, they pretty much accuse Roberts of being an originalist — "If, as expected, Judge Roberts is an originalist" — even though he specifically denied belonging to that or any other easily named branch of constitutional interpretation theory when he was vetted prior to his 2003 approval as an appellate judge.

See "Roberts has avoided tipping his hand" in the same edition of the newspaper for more on that. "I don't know if that's a flaw for a judicial nominee or not, not to have a comprehensive philosophy about constitutional interpretation, to be able to say, 'I'm an originalist, I'm a textualist, I'm a literalist or this or that,'" Roberts said during his confirmation hearings in 2003, according to the article. "I just don't feel comfortable with any of those particular labels."

The second problem I find with the Bakers' analysis is that they malign originalism by undermining original intent. They provide a short history of how the founders in their public and private declarations and acts often went against the words and spirit of what they had put in the constitution.

Both Washington and Jefferson, for example, vacillated as to whether to own to a Supreme Being (in Washington's words) "in whose hands we are, who led our fathers, as Israel of old." So what were they really thinking when they erected (in Jefferson's words) "a wall of separation between church and state"? Original-intent interpretation requires that we know ... which we can't.

But, it seems to me, that objection has nothing to do with originalism/textualism, focusing as it does not on the framers' subective states of mind but on the objective meaning the words conveyed to reasonable minds of the times.


It still may be the case, of course, that the "objective" meaning of the constitution's words when and as written is likewise unascertainable — and originalism/textualism accordingly a bad idea. But the Baker's argument doesn't really establish this. It merely points out why determining "original intent" is a vain hope.

Even so, we can be sure we'll be hearing about "original intent" and "originalism/textualism" — along with "literalism," "judicial activism," and all sorts of other putative approaches — until we're sick to death of the whole matter.

In the question of whether or not abortion can be outlawed, the 1973 Roe v. Wade decision was based on the Due Process Clause of the Fourteenth Amendment, which protects against state action the woman's right to privacy, except where there has been "due process of law" carried out on the part of the state.

The amendment, ratified in 1868 after the Civil War, does not actually mention "privacy." The "right to privacy" asserted in the Roe decision was (rightly or wrongly) read into the text. The text does say: "... nor shall any State deprive any person of life, liberty, or property, without due process of law." This is, in fact, the entire Due Process clause.

(The amendment also says, in what is called the Equal Protection clause: "... nor deny to any person within its jurisdiction the equal protection of the laws.” The full text of the amendment is here, at the U.S. Constitution Online website.)

Justice Harry Blackmun noted in his written decision (online here) on behalf of the Roe majority, in view of the lack of explicit mention of the right of privacy in the clause in question, “Appellant [i.e., Roe] would discover this right in the concept of personal ‘liberty’ embodied in the Fourteenth Amendment's Due Process Clause.”

The same "discovered" right of privacy had previously been cited by the Supreme Court in striking down laws prohibiting interracial marriage, mandating sterilization, hindering the use of contraception, and curtailing parents’ roles in education.


The Roe decision was shored up in 1992, in Planned Parenthood of Southeastern Pennsylvania v. Casey. The Casey decision created an “undue burden” standard. In upholding Roe, it said unduly burdensome restrictions on abortions were unconstitutional, though certain state restrictions such as informed-consent and parental-notification laws were not automatically held to be unduly burdensome.

Casey upheld Roe (invoking, in part, the time-honored rule of stare decisis: "Let the decision stand") in terms of its “essential holding.” Yet, overturned by Casey was the putative “right of privacy” as it supports abortion. The majority opinion in Casey (online here) written by Justice O'Connor, Justice Kennedy, and Justice Souter said:

The Roe Court reached too far when it analogized the right to abort a fetus to the rights involved in [various supposedly applicable decisions named in the Roe opinion], and thereby deemed the right to abortion to be "fundamental." None of these decisions endorsed an all-encompassing "right of privacy," as Roe … claimed. Because abortion involves the purposeful termination of potential life, the abortion decision must be recognized as sui generis, different in kind from the rights protected in the earlier cases under the rubric of personal or family privacy and autonomy.

So “privacy” was no longer a valid rationale for setting aside state anti-abortion laws.

The Casey decision then stated:

The correct analysis is that set forth by the plurality opinion in [the 1989 Webster v. Reproductive Health Services case]: a woman's interest in having an abortion is a form of liberty protected by the Due Process Clause, but States may [nevertheless] regulate abortion procedures in ways rationally related to a legitimate state interest.

"Legitimate state interest” could, in other words, justify abortion restrictions ... but under Casey, even so, considerations of personal "liberty" invalidated sweeping state laws banning all abortions outright.


It seems to me (and I'm no constitutional expert) that Casey is actually something of a blessing in disguise for abortion foes. First, it allows Roe's abortion "right" to be "hollowed out" by various state-imposed restrictions, as long as due process is observed and no "undue burden" is placed on the basic "right" found by the Roe court.

Second, Casey changes the rationale underpinning that "right" from "privacy" to "liberty." If Roe is overturned, other Supreme Court decisions based on "privacy" will still stand: the ones striking down laws prohibiting interracial marriage, mandating sterilization, hindering the use of contraception, and curtailing parents’ roles in education, which no one wants to go by the boards.

So, when people talk of overturning Roe, what they really mean is overturning Roe as "corrected" by Casey.

And when people talk of "original intent," "originalism," or "textualism," in this regard, they mean that the authors of the Fourteenth Amendment — or reasonable people of the day reading its text — would never have considered a citizen's essential "liberty" to include the right to choose to have an abortion.

It will be interesting to see, should John Roberts take a seat on the Supreme Court, and should Roe/Casey eventually be struck down in part because of his vote, whether he in fact will have acted on the basis of such considerations of "originalism/textualism."


For I personally don't think that's the right way to overturn Roe/Casey. (Again, I'm not a lawyer or constitutional expert.) I think the right way is to take up where another potential Supreme Court nominee on the president's short list, appellate judge Edith Hollan Jones, left off when she wrote in her decision in a key 2004 abortion case, "If courts were to delve into the facts underlying Roe's balancing scheme with present-day knowledge, they might conclude that the woman's 'choice' if far more risky and less beneficial, and the child's sentience far more advanced, than the Roe court knew." (Source: this post at SCOTUSblog, a weblog about the Supreme Court Of The United States.)

I particularly underscore the part about the child's sentience being "far more advanced" than was understood when Roe was decided. Medical science has since determined, I believe, that a fetus's heartbeat, brain activity, and reaction to pain begin a lot earlier during the nine-month gestation period than had once been thought.

Basing the overturning of Roe/Casey on that new information doesn't comport well with a doctrine of constitutional originalism/textualism, in my opinion.

In 1868, when the Fourteenth Amendment insisted "... nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws," I doubt whether any reasonable reader of those words would have considered a fetus a "person." Not that many readers of these clauses would have felt abortion to be right or moral; just that (I'm admittedly guessing here) the words of the amendment didn't at all apply to the subject of abortion, since no one in those days of medical ignorance would have considered an early-stage, pre-viable fetus remotely a "person."


If I'm right about that, then I don't see how originalism/textualism can overturn Roe and Casey.

Originalism/textualism is a doctrine designed mainly, I gather, to block judicial "activists'" widening of constitutional protections in the Bill of Rights and elsewhere, by which "liberal" jurists have ostensibly "discovered new rights" such as those making it harder to prosecute and convict the criminally accused. Roe's right to "privacy" for a woman seeking an abortion was, in some eyes, one of those "discovered" rights.

But, by that logic, so were the other "privacy" rights mentioned earlier: the right to engage in interracial marriage, the right of the mentally deficient to avoid forced sterilization, the right of married couples to use contraception or birth control, and parents' rights to take an active role in their children's education.

Roe was decided — and "corrected" by Casey — in a world in which it had become understood for perhaps the first time in history that women could and should no longer be chained to their reproductive capacities. There was, at bottom, an element of humanity — compassion toward women as "persons" — underlying the Roe/Casey decisions.

In other words, our understanding of who deserves our full human compassion enlarged to include women, in all their humanity. As that happened, so, too, did the applicability of our nation's constitutional guarantees, in order to keep pace with our widened understanding and compassion.

That's not something that is permissible under originalist/textualist doctrine.

What I think needs to happen is for our compassion and humanity to widen further now, to include the fetus as a "person" deserving of constitutional protection. When the Fourteenth Amendment states, "... nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws," I think we ought to include the unborn fetus under its umbrella of personhood, based on recent advances in understanding of fetal development.


In the past, I have argued that no one is a "person" until born, since it is unlikely that the fetus, prior to birth, has yet become truly self-aware. I hereby recant. I think that reasoning was flawed. It's not that I think self-awareness begins before birth — as far as I know, there's no evidence for that — but that I think a non-self aware fetus still ought to command our full compassion and humanity.

After all, it's not clear that a baby born terribly brain-damaged ever develops precious self-awareness, and yet no one would fail to extend the umbrella of sacrosanct personhood to such an unfortunate. Terminating his or her life, even for reasons of "mercy," would still be considered murder under the law.

So, if a fetus ought to command our full compassion and humanity because its heart, brain, and nervous system have kicked in by a seemingly very early stage of development, then I say it ought to be accorded the status of being a "person" under the constitution and the law.

It's a matter of widening the ambit of constitutional protections to bring them in accord with present-day knowledge — not of shrinking it to fit the more limited "textualist" or "originalist" understandings of the past.

This is why I think originalism/textualism to be the wrong remedy for Roe. And I hope that Judge Roberts, should he ascend to the High Court and take on the issue, will vote to overturn Roe and Casey on other than originalist/textualist grounds.

Dysfunctional ... Us?!?

"You need to have lovable characters for people to like you," Dean Young, author of the "Blondie" comic strip, says in "'Blondie' Marks 75 Years on Comics Pages," The (Baltimore) Sun, July 16, 2005. No one could be more lovable than the characters of "Blondie":



Young, who is the son of the strip's originator, Murat "Chic" Young, and who co-creates the strip now with artist Denis Lebrun, goes on: "And I think a lot of that has to do with the love that Dagwood and Blondie have for each other in the comic strip. Look at all the dysfunction that's going on everywhere, and here's a man and wife, they love each other and they've loved each other all these years. The passion continues undiminished. And hopefully it's funny, too."

Here's an ostensibly lighthearted newspaper story about a slice of cultural Americana ... yet Mr. Young tosses off a reference to "all the dysfunction that's going on everywhere." What's up with that?


The July 25, 2005, issue of TIME magazine contains a feature story by Lev Grossman, "J.K. Rowling Hogwarts And All," wrapped around his interview with the famed author. Rowling's much-anticipated sixth of a planned seven Harry Potter novels, Harry Potter and the Goblet of Fire, has just skyrocketed — as everyone expected — into the annals of bestselling children's literature.

Rowling tells Grossman, "As I look back over the five published books, I realize that it's kind of a litany of bad fathers. That's where evil seems to flourish, in places where people didn't get good fathering."

The absence of good fathering leads to the flowering of evil: if that isn't the epitome of dysfunction, I don't know what is. Mr. Dithers may find Dagwood a slacker at the office, but at home there's no question. He's always been there for offspring Alexander and Cookie Bumstead:



I think it's about time we woke up to the dysfunction in our society — the rot in our culture, in ourselves — and realized that our current attitudes toward sex, love, marriage, procreation, parenting, and the like lie at the root of it!


Evil is what happens when we make bad choices, period. Dysfunction is what happens when we make the wrong choices about our most important relationships. They're two sides of one coin.

Rowling on her stories' morals:

Rowling refuses to view herself as a moral educator to the millions of children who read her books. "I don't think that it's at all healthy for the work for me to think in those terms. So I don't," she says. "I never think in terms of What am I going to teach them? Or, What would it be good for them to find out here?"

"Although," she adds, "undeniably, morals are drawn." But she doesn't make it easy. ... . People aren't good and bad by nature; they change and transform and struggle. As Dumbledore tells Harry, "It is our choices, Harry, that show what we truly are, far more than our abilities."

We seem to be stuck in a Catch-22. We're shortchanged on our ability to make good choices if, as youths, we don't have at least a Professor Dumbledore as a wise father substitute. So we grow up to make some terrible choices about sex, love, marriage, procreation, parenting, etc. Then, if a pregnancy we don't want happens anyway, we use the prospect of a fatherless (and perhaps motherless) upbringing for the child as a rationale for abortion instead.

What's wrong with this picture?

Why can't we do it right?

What needs to happen before we start making better choices?

Towards a Culture of Life, Part 2

In Towards a Culture of Life, Part 1, I said I hoped for a new or recovered ethos in which human life, even unborn human life, would be held sacred. How do we get to that ethos? How do we scale that particular Mount Everest?

Having the Supreme Court overturn Roe v. Wade, it seems to me, amounts to no more than establishing a base camp on the lower slopes of the mountain. It's necessary, it's good — but it's not enough. From there, we have to actually lower the number of abortions, which may or may not be prohibited by law in the various states after Roe dies — if it dies. Ultimately, we have to change minds, hearts, and behaviors so that discretionary abortions on demand are no longer sought.

Quite a tall order.


Meanwhile, just gaining that Roe-less base camp will take a minor miracle. As Catholic ethicist George Weigel points out in this column from late 2004, the Supreme Court is not divided 5-4 in favor of letting Roe stand; it's divided 6-3. Only Justices Scalia and Thomas and Chief Justice Rehnquist can be counted on to overturn Roe. Even if Justice O'Connor's replacement is solidly anti-Roe, that only makes four votes in favor of overturning Roe and its follow-on, Casey v. Planned Parenthood, the case "which shifted the ground of the right [to have an abortion] from Roe’s 'privacy' to the Fourteenth Amendment’s 'liberty'."

To get to five votes against Roe, assuming an anti-Roe jurist replaces O'Connor, one of justices Breyer, Ginsburg, Kennedy, Souter, and Stevens would also have to retire and be succeeded by a justice who would overturn Roe. (And Rehnquist, if poor health ends his career, would have to receive an anti-Roe replacement.)

Moreover, a case which could conveivably be used to reverse Roe would have to find its way to the Supreme Court's docket. The docket for any current session is generally set at the end of the prior session. Then it can take up to a year for a case on the docket to be heard, and then an indeterminate time until it's decided.

Furthermore, Weigel says, there's no suitable case in the federal judicial "pipeline" even to be considered for the docket. It's not clear to me, no constitutional law scholar, what kind of case it could be, anyway. Who is entitled to sue on behalf of an unborn fetus whose life and liberty are threatened by legalized abortion?


Then there's the strategy question. Weigel is probably right to assume that Roe/Casey will have to be "hollowed out," to the extent possible, by means of state laws — clinic regulations, parental-notification statutes, informed-consent mandates, etc. — which circumscribe the availablity of abortions while not, in the eyes of the current Supreme Court, placing an "undue burden" on the supposed abortion "right" per se.

Weigel points out that Plessy v. Ferguson, the 1896 decision enshrining "separate but equal" treatment of Negroes and thwarting later civil rights advances, was never formally overturned — "it was gutted over time, in a series of cases, to the point where Brown v. Board of Education could administer the coup-de-grâce in 1954."

If the hollowing out process takes a lot of time, it may be years before Roe and Casey bite the dust. If they ever do.


If the states do regain the ability to outlaw abortion someday, it will be a sign that "base camp" has been reached, and all systems are go for an assault on "the peak." But at the end of the day, hearts and minds and the attitudes we take toward procreation, sex, and marriage will need to change. Then and only then can the "culture of life" pennant be planted proudly on the sacred mountaintop.

Overturning Roe and Casey, if it happens, would definitely get folks' attention. I'm hoping it would take our society to a "tipping point" such that a widespread embracing of a respect for human life becomes far easier than it has been for decades.

But resistance to the final tipping of this "tipping point" would be strong. What interests me even more than how this war can be won in a legal/constitutional sense is how it can be won in the hearts and minds of all of us.

Towards a Culture of Life, Part 1

I guess my secret is out: something in my psyche has recently reached a tipping point. I now feel suddenly averse to my erstwhile pro-choice, pro-abortion rights attitude. (See Are We at a Tipping Point? and, in another blog, Can We Have Too Much Liberty?.)

I now think those who espouse a "culture of life" are right on the money.

Ever since Roe v. Wade made abortion legal in 1973, the culture has gone to the dogs. By that I mean that we have become a nation of "slob divas" (see Hooray for Hypocrisy!). The lives of each and every one of us, in the way in which we live them, shout "It's all about me."

What do I mean? I just saw the new movie The Fantastic Four. Great special effects, but whatever happened to superheroes for whom the overriding concern is about more than curing their own space-zapped DNA? Mr. Fantastic, The Thing, The Invisible Woman, The Human Torch — what is the point of their transformation, in this movie, except to oppose the only slightly more self-absorbed Dr. Doom, their onetime colleague. He wants world power, they want ... what? To put things back to where they were before, not for the world's sake but for their own return to comfort.

Well, OK, maybe I can relate to that, after all. I'd like to put things back the way they were before, partly for my own sense of comfort. I've grown uncomfortable in a world in which the needs of the community take second place to personal prerogative.

So when I say I'd like to reaffirm a "culture of life," that's my not-so-hidden agenda. This is not only a symbolic thing, but it's nonetheless true that at the level of psychological symbolism, legalized abortion sanctions just about every version of extreme personal prerogative you can name.


What I'm talking about is ethos. Ethos is a fancy word for shared community values, unwritten rules which hem in our conduct and mold our attitudes. We live in a world in which a once-unified ethos has become balkanized. A world in which each is notably free to pick the rules he or she lives by, and to do so independently of everyone else, one-from-column-A-two-from-column-B-style, à la a Chinese restaurant.

We live in a world where in the province of human knowledge we have developed "the inability to make vocabularies intersect from subject to subject" — words by Brother Patrick Ellis, former president of the Catholic University of America, writing in his "My Turn" column in the 7/14/05 Catholic Review (p. 9).

This particular essay is called "Welcome to the Pope's Mind." In it, Ellis rues the "20th-century compartmentalizing of knowledge with the spin-off of the natural sciences [from other knowledge domains] and the fraying of the theology-philosophy fabric" at the same time as he extols the new Pope Benedict XVI's reaffirming "the doctrine of conscience."

A few weeks ago, I couldn't have agreed with Ellis on that. Now I feel I can.

Maybe I'm a part of the "geezer generation" Ellis speaks of. Maybe I got my basic education before "the fragmentation of knowledge" — and the balkanization of ethos — got under way. But I now consider myself like him in linking the disrespect for life in an abortion-legal land with all the general fragmentation and balkanization.


I can't immediately put my finger on where I read it, but I've heard this fragmentation and balkanization spoken of as the essence of post-modernism. Deconstructionist literary theory, post-modernism's badge, says that no "text" — no body of words — really means anything beyond what we read into it. And each of us reads it in his or her own way. Sure, there are cultural overlays; as a member of a Catholic subculture, I read Brother Ellis differently than a Protestant would. But the point is that no one culture or subculture's interpretation of any given text ought to be privileged over any other.

If no text, no set of symbols has intrinsic meaning, whither ethos? Whither the human ability, so amply demonstrated in the past, to enshrine a body of values and live by them as a community? That's what we've lost today, and it's killing us slowly but surely. And the first step back to ethos and true community, it seems to me, is to embrace a "culture of life."

Hooray for Hypocrisy!

I mentioned in Are We at a Tipping Point? that the retirement of Supreme Court Justice Sandra Day O'Connor has put the handwriting on the wall for Roe v. Wade and legal abortion ... and that I was as I remain: surprised to call myself glad of it!

Why am I glad? It seems to me that in this present age our culture is typified by (a) people being mainly interested in self-gratification and (b) people being not the least bit hypocritical about admitting (a).

How does abortion figure in? Abortion is what happens when "mistakes are made" with regard to sex, and when it comes to self-gratification, sex (at least, the way it is used today) is the Big Kahuna of gratifying the self.

Or at least it is one of the top three, along with binge eating and not stopping in favor of oncomig traffic while exiting a parking lot when talking on a cell phone and not looking where one is going.


We've become a nation, not just of slipshod drivers, but of slob divas.

The term "diva" used to apply to temperamental female singers in the world of opera. No more. After making a brief stop as a description for temperamental female singers in the world of pop, it is now getting applied to, among others, overpaid baseball players, decidedly male. I guess that means that to the extent we all act the way a Barry Bonds acts or Sammy Sosa used to act before being traded to Baltimore — or to the extent that we would if we thought we could get away with it — we're all divas.

As for the "slob" part, check out Susan Reimer's article "Flying the friendly skies with slobs" in the 7/12/05 edition of The Baltimore Sun. Reimer chastises a fellow traveler waiting in the airport security line for berating a woman ahead of him in line for wearing Arab clothing, saying to her, "Why can't you dress like an American?" Then Reimer scowls at the "team jackets, sleep pants and flip-flops" worn by a traveling sports team; the women's attire consisting of "halter tops and strapless tops and spaghetti-strap tops and tops that failed to cover pierced navels"; and the "men wearing those sleeveless undershirts that are often called 'wife-beaters'."

"I saw young people wearing T-shirts," writes Reimer, "that said stuff you are not allowed to say in public. (Although none of them said, 'Why don't you dress like an American?')"

If this is the sort of thing is Americans are wearing to fly these days, Reimer says she opts out. "What ever happened to khakis and a golf shirt?" she writes. "I know we are in the dog days of summer, but what about a sleeveless shift and a pair of dress sandals? Does everybody have to look like they just stumbled out of a Laundromat?"

Yes, Susan, they do ... if there is no self-gratification in dressing nicely, and if the primary statement people want to make is, "I may be a slob, but at least I'm not a hypocrite about it."

And it goes deeper. There seems to be a kind of unstated conspiracy going on, to the effect that slob-diva behavior in public on my part sanctions slob-diva behavior in public on your part, and vice versa. If we all act slobbish and sluttish, cynical and rude, then everyone's doing their part. We're acting as a community of slob divas, which in the old days would have been an oxymoron, as if one had said people were generally acting selfishly unselfish.


I contrast the current scene with what things were like when I was growing up in the 1950s and early '60s. That's right ... I mean the Eisenhower administration, recently lampooned by Stephan Pastis in his Pearls Before Swine comic strip:



"Locked in some past era that has almost no connection to present times," à la Bil Keane's daily Family Circus panel? Sounds good to me.

I can't really prove that people were less into self-gratification then — and more into being kind, gentle, chaste, polite, and neatly dressed — but everyone knows that's how they seemed. It was a Ozzie and Harriet, Father Knows Best, Norman-Rockwell-picture-on-the- cover-of-the-Saturday Evening Post world, and if people in their private lives weren't really as apple-cheeked as all that, at least they kept up appearances.

In other words, say I, hooray for hypocrisy!

Are We at a Tipping Point?

In Can We Have Too Much Liberty?, a post to the blog I maintain as oldstyleliberal, I wrote of my conversion to believing that we as a society may be better off if Sandra Day O'Connor's replacement as Associate Justice of the U.S. Supreme Court turns out to be the last straw for Roe v. Wade, the 1973 decision that legalized abortion.

Though I think that abortion ought to be legal on paper, in the real world its legalization ushered in an era of extreme personal self-indulgence and hyper-entitlement (see this article, "The entltlement generation," which recently appeared in The Baltimore Sun). It wasn't just a sexual thing, by any means, but a sense of no-holds-barred sexual license was its leading edge. People who can do no wrong sexually — if you goof up, "mistakes were made"; just have a surgical procedure to put things right — typically can do no wrong in any other venue of life.


If Roe went bye-bye, what would happen? I don't mean to ask here about the specific sequence of events that might follow Roe's demise. Doubtless there would be a series of legislative and judicial occurrences that might lead to abortion being more or less legal in some states, more or less banned in others. We'll just have to wait and see.

Be that as it may, what concerns me now is the "macro" effect of making anti-abortion laws constitutional once more. I think it might have an "avalanche effect" throughout the culture, as a result of which the society would move to the right morally and behaviorally.


As I've mentioned in my Beyond Darwin blog, I'm a great fan of complexity researcher Stuart Kauffman and his book At Home in the Universe. Kauffman finds that complex systems such as life on Earth are prone to "self-organized criticality." The research done by Per Bak and others into the behavior of sandpiles(!) furnishes him with a conceptual model. As new grains of sand are dropped on an accumulating sandpile one by one, they may or may not trigger an avalanche. If they do, the avalanche may be a tiny one, a huge one, or any size in between.

There's no way to be sure in advance what size of avalanche, if any, will happen. Yet over time, several things emerge. One, the smaller the avalanche, the more likely it is to occur. Two, a huge avalanche will occur eventually. And three, when the sizes of avalanches are plotted against their frequencies, the curve is a regular one: a power-law function.


After a huge avalanche has transpired, but not before, we can be sure that the "system" — i.e., the sandpile itself — had poised itself at an edge of what has been called "self-organized criticality." Then, as the very next grain of said fell, the system abruptly went "critical." Result: a major avalanche.

To me, this looks to be approximately the same idea as the one extolled by Malcolm Gladwell in a newer book I have not actually read, though I've read about it: The Tipping Point: How Little Things Can Make a Big Difference. Gladwell writes that, for instance, a major epidemic breaks out if and only if the conditions that might lead to one are exquisitely poised at a certain "tipping point," in which case any seemingly innocuous trigger can play havoc with the public health.


Not all "avalanches" or "epidemics" are bad. If as a result of a reversal of Roe, there were a spate of follow-on changes which would rein in our private egos and their unbridled claims to rule the day, it would be a case of a beneficial "avalanche" or "epidemic" in American society, I believe.

Little things make big differences sometimes. I believe (hope?) that overturning Roe might be the grain of sand that would tip our culture into a kinder, gentler, less self-assertive mode of doing business.