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Apologetics for the Masses - Issue #176
General Comments
Hey folks,
I often get questions from people about where they can take formal courses that will help them learn their faith better. Well, I’ve come across just such a place – Homeschool Connections. It started out as a way for homeschoolers to give their kids the opportunity to take some interactive online courses from some very good instructors, on a variety of subjects…and, homeschoolers, that is still their primary purpose…but it occurred to me that this would also be a very good way for anyone to learn more about their faith, through their online Theology courses, in the comfort of their own home, for not a whole lot of money.
So, as I am prone to do when I come across organizations that I like, I thought I would share information about them with you. For full disclosure purposes, I am not receiving anything from them in return for this recommendation. I just wanted to share this with you, and particularly with you homeschoolers, in case you might be able to benefit from it.
Below is a blurb from the organization itself:
Are you struggling to meet the needs of all of your home school students? Homeschool Connections might be the answer you are looking for. We provide online, live, interactive courses to middle and high school students. We engage and challenge your student from the comfort of your home. Our highly skilled instructors are committed to the Magisterium of the Roman Catholic Church. They provide you the peace of mind of knowing no matter what the topic, your student is receiving a sound Catholic education. Some of our Fall 2011 and all of our Spring 2012 courses are still open for enrollment. To register or learn more please visit us at http://homeschoolconnections.com <http://homeschoolconnections.com/>.
For students (home schooled or not) who wish to improve their understanding of any of our 70 courses ranging from literature to algebra to science to philosophy check out our subscription service. It is only $1 for the first 7 days and $30 per month thereafter. Listen to what this mom said about the service…
“I am preparing our homeschool lessons to start school next week. The $30/month subscription to the recorded classes is becoming invaluable to me! I don’t have to plan. I am just going through now and printing off all of the papers, and it is wonderful to have all the lesson plans laid out for me! Thank you!”
Here’s a sample of an upcoming Theology class: Ecclesiology & Sacramental Theology—How Shall I Glorify God? with Monica Ashour, founder of Theology of the Body Evangelization Team. Description: The students in this course will study the nature of the Church, that is, how She is in the “nature of a sacrament” (Lumen Gentium), along with all of her other aspects. Jesus Christ as the Bridegroom of His Bride, the Church, extends Himself through time via the Church who holds the “Deposit of Truth and the Deposit of Grace” through the Liturgy and the Sacraments and the Teaching Office. Starts Tuesday, October 25 at 1 pm ET
But, again, in addition to Theology courses, they have everything the homeschooler could want – Math, Science, Philosophy, etc. Check ’em out!
Introduction
Okay, this week is something a little bit different than the normal fare that we treat with here. As many of you are aware, there have been a number of attempts in recent years, and especially since the last elections, to pass “personhood” bills, in the state legislatures primarily, but also with the aim of passing one at the federal level should enough pro-lifers get elected to the Senate in this next election.
What you may not know, is that the Catholic Conferences of each state – which are the lobbying arms of the Catholic dioceses in those states (I believe 43 states have such conferences) – are generally not in favor of the passage of these personhood bills or amendments and generally do not support them. They don’t necessarily openly oppose these bills or amendments, but they don’t get behind them either. Which means, of course, that the Bishops are generally not in favor of the passage of these personhood bills.
Now, you might be thinking to yourself, “Why would the Bishops not be in favor of the passing of bills that give personhood status to the unborn from the moment of conception?” Good question.
It seems that the Bishops generally look unfavorably on such legislation due to the legal advice the Bishops’ Conference has received on this issue. And, specifically, the legal advice they have received from a lawyer named Paul Linton. He is, apparently, a brilliant man and a darn good lawyer. The argument he makes to the Bishops against personhood legislation is basically this: The makeup of the current Supreme Court is such that any and all attempts at overturning Roe v. Wade through the vehicle of “personhood” legislation at the state and/or federal level, is merely a waste of time and resources. We need to wait until such time as we have a solid majority on the Supreme Court that we know for sure will be willing to overturn Roe v. Wade, and only then do we need to move forward with legislation and/or court challenges that could overturn Roe v. Wade.
Well, call me naive, and I know many will, but that kind of thinking just doesn’t sit right with me. So, when I saw yet another article from Mr. Linton in which he opposes anything to do with personhood legislation, I decided I could remain silent no more.
So, below is the most recent article of his regarding personhood. Now, this article is speaking specifically about two particular tactics of the personhood strategy that came up in a recent Tea Party forum for Republican candidates for President. I am not going to respond directly to his arguments regarding these two tactics, I am just including this article so that you can get a feel for his general outlook towards the whole personhood debate. It is not necessarily an easy article to follow, with all of its legal aspects, so I will say that it is not necessary to read and understand his article in order to understand my response. And, again, my response is not to his particular arguments in this article, but to the general attitude of his argument towards the whole personhood strategy – we can’t win, so let’s not even try.
So, if you want to read his article, by all means do so, but I think you can also just read some of his article, or skip it altogether, and you will still be able to fully understand my response.
One last thing. Everything I say here is in no way intended to say that Mr. Linton is not staunchly pro-life or any such thing. Not at all. This merely reflects a difference of opinion on a particular pro-life strategy.
Challenge/Response/Strategy
Paul Linton:
There is No Silver Bullet to Overturning Roe v. Wade
by Paul Linton | Washington, DC | LifeNews.com | 10/6/11 3:42 PM
· Print
· Introduction
At a Labor Day forum sponsored by the “Tea Party” for the Republican candidates for president, one of the panelists, Professor Robert George, asked the five candidates who participated whether, in an effort to overturn Roe v. Wade, 410 U.S. 113 (1973), they would support Congressional legislation to declare the unborn child a “person,” as that word is used in § 1 of the Fourteenth Amendment to the United States Constitution.
Section 1 provides, in part, “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.” The purported authority for such legislation is § 5 of the same Amendment which provides that “Congress shall have power to enforce, by appropriate legislation, the provisions of this article [referring to the Fourteenth Amendment].” Three of the candidates–Rep. Michele Bachmann, former Speaker Newt Gingrich and businessman Herman Cain–said that they would support such legislation; one–Rep. Ron Paul–said that the issue of abortion is one for the States, not the federal government, to decide; and one–Gov. Mitt Romney–indicated that he opposed such legislation because it would precipitate a constitutional crisis between Congress and the Supreme Court. At the same forum, the candidates were also asked whether they would support Congressional legislation removing the appellate jurisdiction of the Supreme Court over cases abortion regulations.
Defining the Unborn Child as a “Person”
In Roe v. Wade, the Supreme Court held that the unborn child is not a “person,” as that word is used in § 1 of the Fourteenth Amendment and, therefore, is not entitled to the due process and equal protection guarantees the Amendment confers upon “persons.” 410 U.S. at 156-59. Could Congress, acting under § 5 of the Amendment overturn that holding? The answer is clearly no.
The Supreme Court has held that “Congress may not legislatively supersede our decisions interpreting and applying the Constitution.” Dickinson v. United States, 530 U.S. 428, 437 (2000). In Dickinson, the Court struck down a Congressional statute attempting to overturn the standards for determining the admissibility of confessions established by the Court in Miranda v. Arizona, 384 U.S. 436 (1966) (requiring the police to provide a criminal suspect in their custody with certain warning before questioning him). Dickinson, to be sure, did not involve an exercise of Congressional authority under § 5 of the Fourteenth Amendment, but attempts by Congress to rely on § 5 to overturn Supreme Court decisions interpreting the Constitution have fared no better.
In City of Boerne v. Flores, 521 U.S. 507 (1997), the Supreme Court struck down a statute passed by Congress in reaction to the Court’s earlier decision in Employment Division, Dep’t of Human Resources of the State of Oregon v. Smith, 494 U.S. 872 (1990). In Smith, the Court held that a “free exercise of religion” claim brought under the First Amendment may not be brought against a neutral law of general applicability, even if that law has the incidental effect of burdening someone in the exercise of his religion. In response, Congress, purporting to act under § 5 of the Fourteenth Amendment, enacted the Religious Freedom Restoration Act. Under the Act, any state statute, local ordinance or other regulation that “substantially burdens” a person in the free exercise of his religion is subject to the “strict scrutiny” standard of review. A statute, ordinance or regulation subject to this standard is presumed to be invalid, and may be upheld only if the State (or municipality, in the case of an ordinance or local regulation) demonstrates that it is the least restrictive means of advancing a compelling governmental purpose. Because this test is seldom met, the “strict scrutiny” standard has been described as “strict in theory and fatal in fact.”
In City of Boerne, the Court held that the Religious Freedom Restoration Act exceeded Congress’ authority to “enforce” by “appropriate legislation” the provisions of the Fourteenth Amendment. 521 U.S. at 529-36. Although Congress has broad enforcement power under § 5, that power is not “unlimited.” Id. at 518 (citation and internal quotation marks omitted). “Congress’ power under § 5 . . . extends only to “enforc[ing]” the provisions of the Fourteenth Amendment,” a power which is “remedial” in nature. Id. at 519 (citation and internal quotation marks omitted). As the Court explained:
The design of the [Fourteenth] Amendment and the text of § 5 are inconsistent with the suggestion that Congress has the power to decree the substance of the Fourteenth Amendment’s restrictions on the States. Legislation which alters the meaning of the Free Exercise Clause cannot be said to be enforcing the Clause. Congress does not enforce a constitutional right by changing what the right is. It has been given the power “to enforce,” not the power to determine what constitutes a constitutional violation. Were it not so, what Congress would be enforcing would no longer be, in any meaningful sense, the “provisions of [the Fourteenth Amendment].”
Id. The Court added:
If Congress could define its own powers by altering the Fourteenth Amendment’s meaning, no longer would the Constitution be “superior paramount law, unchangeable by ordinary means.” It would be “on a level with ordinary legislative acts, and, like other acts, . . . alterable when the legislature shall please to alter it.” [Citation]. Under this approach, it is difficult to conceive of a principle that would limit congressional power. [Citation]. Shifting legislative majorities could change the Constitution and effectively circumvent the difficult and detailed amendment process contained in Article V.
Id. at 529.
The Supreme Court’s decision in City of Boerne v. Flores leaves no doubt that any effort by Congress, relying upon its “enforcement” authority under § 5 of the Fourteenth Amendment, to define the unborn child as a “person,” as that term is used in § 1 of same Amendment, would fly in the face of the Court’s decision in Roe v. Wade that the unborn child is not a constitutional “person.” Congress’ power under § 5 is “corrective or preventative, not definitional . . . .” Boerne, 521 U.S. at 525. Yet, in attempting to define “person” as including the unborn child, Congress would be doing precisely what the Court has said it cannot do, i.e., “decree[ing] the substance of the Fourteenth Amendment’s restrictions on the States.” Id. at 519. Section 5 of the Fourteenth Amendment does not “endow[] Congress with the power to establish the meaning of constitutional provisions.” Id. at 527. In the absence of a majority on the Court that would be willing to overrule Roe’s “personhood” holding (and no Justice on the Court, then or since, has expressed the opinion that the unborn child is or should be regarded as a constitutional “person”), that holding cannot be overturned except by a federal constitutional amendment. “The power to interpret the Constitution in a case or controversy remains in the Judiciary.” Id. at 524. A Supreme Court ruling interpreting the Constitution may not be overturned by a statute.
Removing the Supreme Court’s Appellate Jurisdiction over Abortion Cases
From time to time, persons have proposed Congressional legislation removing the Supreme Court’s appellate jurisdiction over cases challenging abortion regulations. Such legislation, it is believed by some, prevent the Supreme Court from enforcing and/or expanding the abortion liberty recognized inRoe v. Wade, 410 U.S. 113 (1973), as modified in Planned Parenthood v. Casey, 505 U.S. 833 (1992). That proposal also came up in the recent Republican presidential candidates’ forum sponsored by the “Tea Party.” Legislation to remove the Court’s appellate jurisdiction over abortion cases would be based on art. III, § 2, of the Constitution, which provides, in relevant part, that Supreme Court “shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.” Although legal scholars have disagreed about Congress’ constitutional authority to remove the Supreme Court’s appellate jurisdiction over a given category of cases (e.g., abortion), this analysis does not attempt to enter into that debate. Rather, the analysis suggests that, even if Congress does have such authority, it should not exercise it.
First, removing the Supreme Court’s appellate jurisdiction over abortion cases would not affect the precedential force of the Court’s abortion decisions. Under the Supremacy Clause of the United States Constitution, both lower federal courts and state courts would continue to be bound by Roe, as modified by Casey. Article VI of the United States Constitution provides, in part, that “This Constitution . . . shall be the supreme Law of the Land; and the judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” And under art. VI, “all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation to support this Constitution . . . .”
Second, ironically, removal of the Supreme Court’s appellate jurisdiction over abortion cases would actually prevent a differently constituted Court from overruling Roe and Casey, and returning the issue of abortion to the States. That would not appear to be in the best interests of the pro-life movement or unborn children.
Third, removal of the Supreme Court’s appellate jurisdiction over abortion cases would effectively leave lower federal courts and state supreme courts as the final arbiters of what is and what is not allowed with respect to the regulation of abortion. Under current law, a decision by either a federal court of appeals or a state reviewing court giving an overbroad reading to the abortion liberty may be reviewed and rectified by the Supreme Court. If the Court’s appellate jurisdiction were removed, however, there will be no mechanism for correction of such decisions. Moreover, there could be a profusion of conflicting decisions among federal courts, among state courts and between federal courts and state courts, as to what abortion regulations are permissible, with no possibility of Supreme Court review.
Conclusion
The Supreme Court’s abortion decisions can be overturned only by an overruling decision of the Court itself or by a federal constitutional amendment. Congress has no power under § 5 of the Fourteenth Amendment to define the unborn child as a “person” for purposes of § 1 of the Amendment, when the Court has held (in Roe) directly the opposite. Removal of the Supreme Court’s appellate jurisdiction over abortion cases
would not affect the binding force of those decisions and would actually prevent a differently constituted Court from overruling Roe and Casey. The proposals made to the Republican presidential candidates at their “Tea Party” forum do not offer a realistic means of overturning Roe v. Wade and do not deserve the support of the pro-life community.
Roe can be overturned only by a decision of the Court itself overruling Roe or by a federal constitutional amendment–neither a federal statute enacted under § 5 of the Fourteenth Amendment defining the word “person” as used in § 1 of the Amendment, nor a statute removing the Supreme Court’s appellate jurisdiction over abortion cases would have that effect.
LifeNews.com Note: Paul Linton is special counsel to the Thomas More Society, a pro-life legal group
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John Martignoni:
I obviously do not have the credentials to disagree with the technical aspects of Linton’s legal argument, but I simply have to disagree with the prevailing attitude of his opinion: “Well, we can’t win this one, so it’s not worth even trying.” To conclude that it’s not even worth trying to pass personhood legislation – at the state and/or federal level – because it would ultimately be thrown out by the Supreme Court as it is currently constituted is the same thing as saying, “No, all things are not possible with God.” Put down your sling, David, Goliath can’t be beat. Furthermore, it is saying that there would be absolutely no good whatsoever that could come from such an effort as this. That is a defeatist mentality, and it is a mentality that leaves no room for the efficacy of prayer and for the working of the Holy Spirit, and it is a mentality that I cannot and will not subscribe to.
Does the homosexual lobby have the same attitude as Paul Linton? “Hey, let’s not even try to put a same-sex marriage amendment on the ballot, the polls show it could never win.” No, they do not. Why not? Because they know that if they are out there doing something, visibly fighting for what they believe in, that it will make their troops tougher and more battle-hardened and more determined, and that they will undoubtedly gain more troops and more converts to the cause just by putting up a fight, even if it’s a fight they know they can’t win…this time. When folks on their side see that the battle has been engaged, it gives them something to rally around. Something to write their Congressmen and Senators about. Something to have newspapers report and bloggers blog about. They see their side fighting the battle on all fronts, and it gets them engaged in the struggle, it gets them energized, and it leaves open the possibility that maybe…just maybe…something unexpected might happen. And every time they put a same-sex marriage on the ballot, what happens? It gives them a chance to make their case to the public. It gives them a chance to keep the issue front and center in the cultural wars. It gives them a chance…period.
Why don’t we say to our people, “Hey, this may not have a chance at the Supreme Court, but it is the right thing to do, and by all that is holy and good we are going to fight this battle in the halls of government, in the court of law, and in the heart and minds of the public; and we’re going to put our best political legal minds forward, our best legal minds forward, and our best spokesmen forward to influence the outcome of this battle. But, most importantly, we recognize that this struggle is not going to be won by the maneuverings of our best political minds nor the arguments of our best legal minds nor by the eloquence of our best spokesmen, rather it will be won by those on our side who hit their knees night after night and beg for God’s blessing upon our efforts and His mercy upon our nation.”
Paul Linton’s opinion may be an opinion born of brilliant legal insight, but it is also an opinion born of timidity and fear. Timidity and fear never changed anyone’s heart or mind. Timidity and fear never rallied anyone to a cause. Timidity and fear never won a battle. To concede defeat before one even steps onto the battlefield is an attitude that will leave our country with abortion on demand for the rest of our lifetimes, our children’s lifetimes, and our grandchildren’s lifetimes. In almost 40 years of fighting, 40 years of “chipping away” at Roe v. Wade and abortion on demand, we still have more than one million babies dying each year from abortion in this country alone. Maybe it’s time to take a chance. Maybe it’s time for boldness. Maybe it’s time to swing for the fences. We need to engage in this fight.
Would the current Supreme Court throw out a law that defined a human being as a “person” under the Constitution from the moment of conception? Maybe so. But, why don’t we give the Justices on the court the chance to make that decision for themselves? Why don’t we give the Holy Spirit a chance to influence the hearts and minds of the Justices? Why don’t we put the Justices in the position of standing on the divide between Heaven and Hell – as individuals, as a Court, as representatives of our society – and see what decision they make when they are confronted with a real life and death “choice.” See what decision they make when they are actually put in the position of knowing that if they decide for personhood, they will be responsible for saving millions of lives; or, if they decide against personhood, they will be condemning millions to their deaths and they will one day have to stand before God and explain that decision. What would Justices Roberts, Thomas, Alito, Scalia, Kennedy, et al decide when faced with such a choice? Why don’t we find out?
Imagine this scenario: Congress passes a personhood bill. The line is drawn in the sand. The Bishops get behind this effort with the full force and weight of their offices. This issue moves to front and center in the cultural wars. It is perceived by the culture of death as the single greatest threat to their way of life. The media report. The bloggers blog. The humble pray. The faithful are energized by seeing their Bishops act – act with one mind and speak with one voice – in getting behind this effort to maybe, just maybe, have this evil cast from our land in one fell swoop. Many who formerly sat on the sidelines stand up to be counted as the battle is engaged. Prayers fall upon Heaven as the rain fell upon the earth in the day of Noah. Then, on the day the personhood case is argued before the Supreme Court, the Bishops call for a day of prayer and fasting on behalf of the faithful. Every single church in every single diocese rings its bells to call the faithful to Rosary vigils and Eucharistic adoration, to pray to God for justice for the unborn. The Bishops, particularly those of Washington, D.C. and the surrounding areas, call on all of their priests, especially those who just happen to have Supreme Court Justices in their congregations, to specifically pray, at Mass – Sunday after Sunday – for the Justices to decide for life.
And, if after all of that, the Supreme Court rules against personhood for the unborn, who would dare say that it was a wasted effort? A battle that should never have been fought? If we try, we have a chance. If we try, we give God the opportunity to change the hearts and minds of those who would make such decisions. If we try we are saying, “God, like Joshua and Caleb, we are willing to stand against the giants in the land, and if You be for us, who can stand against us?!” If we do not try, then the outcome is already decided and we must be content to be counted among “those cold and timid souls who know neither victory nor defeat,” (Teddy Roosevelt).
Why did Pilate ultimately condemn Jesus to death? Because he recognized that if he had freed Jesus, the odds were great that he would have consequences to pay – both from the Jews and from his Roman superiors – and he was not willing to take that chance. So, he chose not to fight for the Person of Jesus Christ. So, too, Mr. Linton says the odds are great that a personhood amendment will ultimately fail and result in the wasting of valuable time and resources. At least, that’s what it looks like from a purely legal perspective. But, what about from the perspective of faith? I cannot help but ask what Mr. Linton would have advised Pilate if he were Pilate’s legal counsel at the time? Would he have advised Pilate to fight for the Person of God because it was the right thing to do? Or, would he have advised him to sit this one out – the cost would be too great and, besides, the outcome had already been decided, so just ask for the water basin and move on?
Should the unborn have the full protection of the law from the moment of their conception…yes or no? If yes, then why, by all that is holy and good, are we opposed to passing laws that say just that? Is doing the right thing now dependent upon a merely legal calculation of the odds of a successful outcome? Will our actions be dictated by what is right, or have we been reduced to having our actions dictated by legal opinion?
Just one “person’s” opinion,
In Conclusion
I hope all of you have a great weekend!
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