2004 December Letters

Just Punishment?

In “Capital Punishment: The Case for Justice” (August/September), J. Budziszewski makes a strong argument for capital punishment based on justice in accord with Scripture. However, I think that in focusing on justice and clemency rather than on signs or sacramentality he focuses on the wrong issue. What we need to ask is: What does capital punishment say sacramentally? That is, what is the deeper, supernatural reality that God wants us to understand when He prescribes the outward sign of capital punishment for certain crimes? What is God teaching us?

Although Professor Budziszewski refers to murder as categorically deserving capital punishment, he fails to mention fornication, adultery, sacrilege, etc. Would he advocate that we put to death categorically all fornicators as the Mosaic law prescribed? What about politicians who make sacrilegious communions? Such a position would be consistent with his use of Scripture.

God shows mercy to David after he commits adultery and murder. He is more deserving of death than an ordinary murderer since he used the power received by his anointing as king to accomplish his crimes. But God knew his heart and the powerful lesson he would teach us. This was more important than “justice.”

Prof. Budziszewski focuses on the justice of retribution. Let’s face reality here: for certain crimes, no punishment will ever do justice in this life. How can you restore lost innocence to a child who has been defiled? How do you restore lost life to someone murdered?

Capital punishment can teach that one deserves eternal death for certain acts, but only in the context of a society’s religious belief. In an irreligious society, capital punishment teaches something else: that the state has absolute power over life.

By contrast, doing away with capital punishment teaches that life is sacred. It teaches that only God can say when life ought to begin and when it ought to end. And it teaches that true justice is only achieved in eternity.

(The Rev.) John R. Waiss
Tilden Study Center
Los Angeles, California

The strength of J. Budziszewski’s argument for the primacy of retribution in punishment is that it provides for proportionality between the gravity of offenses committed and the severity of punishments imposed. When persons or their relatives are seriously and intentionally harmed, they have a prima facie claim that substantial punishment should be imposed. However, Budziszewski has not established his claims that capital punishment is consistent with the New Testament and that retributive justice requires that society retain it.

Professor Budziszewski maintains that “at least death deserves death, [and] that nothing less is sufficient to answer the gravity of the deed.” He reasons that through the application of deserved punishment the wrongdoer pays a price equivalent to the harm he has done and society is protected morally by the restoration of just order. But it is far from evident that to punish the crime of homicide with death is the most just punishment or is just at all. Advancing a principle of proportional retribution does not in itself reveal the justice of any specific punishment. The punishment for homicide could, for example, be exile, life in prison, life with hard labor, periodic torture without death, torture followed by death, or death by humane means. Prof. Budziszewski asserts that “[S]ome criminals seem to deserve death many times over.” Later in his piece he refers to “the deviant who tortures small children to death for his pleasure” and “the ideologue who meditates the demise of innocent thousands for the sake of the greater terror.” We may ask: Why should such persons not be subject to torture?

An answer may be found in Prof. Budziszewski’s rejection of those “grotesque and torturous methods of execution” that, he says, “seem most likely to deter.” He rejects them because “they are incompatible with human dignity.” But this is a criterion other than retributive justice. Moreover, Prof. Budziszewski further mitigates the requirement that “death deserves death” by appealing to God’s forgiveness and patience and to Christ’s having taken the punishment of those “who repent and turn to him.” Thus he reasons that not only criminals in general but “perhaps capital criminals” can “be punished less than they deserve.” Then, in the final adjustment of his position, Prof. Budziszewski ends his article by agreeing with Pope John Paul II that in our time “cases in which the death penalty is still necessary are ‘very rare, if not practically nonexistent.’”

This is an enormous leap, for the bulk of Prof. Budziszewski’s arguments aim to refute opponents of capital punishment. Why seek to defeat anti“death penalty arguments if one ends by concluding that the death penalty should be practically abolished? If human dignity and mercy are significant enough to rule out “torturous methods” and greatly reduce the occasions for capital punishment, why not conclude that they should rule out these intentional killings by government entirely?

Prof. Budziszewski rightly says that it “is a fearsome matter to imprison a man.” But if there was an error, the imprisoned person can be released and restored to family and friends, whereas the person executed cannot be brought back to life. Along with feeding the hungry, taking in the stranger, and clothing the naked, ministering to the prisoner is specified as an action taken by “the just” (Matthew 5:34-40). While prison may be in tension with the gospel norm of forgiveness, executions decisively violate it.

The idea that God puts “the divine prerogative of life and death” into the hands of “those who hold public authority” has done great harm. Capital punishment has been a blot on human history, including the history of ostensibly Christian societies. Reasons for Christians to oppose it include pervasive injustices in its application and, most importantly, the fact that it violates norms of love and forgiveness.

Michael C. Stratford
Emeritus Professor
of Political Science
Central Michigan University
Mount Pleasant, Michigan

J. Budziszewski’s argument rests on the asserted but unargued proposition that the crime of murder “deserves”
death and only death. Nothing less, apparently, will do, since Professor Budziszewski formulates his central question as follows: “is it ever permissible for public authority to give the wrongdoer less than he deserves?” This frames the conversation from the start in terms of an either/or” either murderers are given death, or they are given less than they deserve, i.e., they are extended “clemency.” To abolish the death penalty would be to “ categorically extend clemency” to all those who otherwise deserve death.

Framing the issue this way guarantees the author the moral high ground, since to defend the abolition of the death penalty would be to defend a measure of punishment that misses the mark of justice. Prof. Budziszewski writes as though his position is traditional, but it is actually very rare. He defends a strict application of the lex talionis (law of retribution)”that is, he holds to equality both in proportion and in kind of harm inflicted. This is the position of Kant.

It is not, however, the position of Thomas Aquinas, whose defense of the death penalty dominated Catholic penal ideas for seven hundred years. Aquinas argued that punishment should proportionally correspond to the fault. Civil authority should punish grave crimes with severe punishments and the gravest crimes with society’s most severe punishments. As to which concrete punishments should be annexed to which crimes, the judgment is a prudential one left for public authority to determine. If punishment is to be made capital, a further consideration needs to be taken into account. Aquinas argues for the death penalty by way of analogy (an analogy which in my estimation fails): a dangerous criminal can be likened to a diseased limb of the body; just as it can be good and life-giving to cut off a diseased limb for the sake of the health of the whole body, so too it can be good and salubrious to kill a dangerous criminal for the sake of the welfare of the community.

As stated, I think Aquinas’ analogy is flawed, but at least it makes ample room for the conventional interpretation of the papal teaching that in the modern world the welfare of the community no longer requires the death of criminals; severe but nonlethal punishments therefore should be inflicted upon murderers with confidence that justice is thereby being served. If Prof. Budziszewski wishes to argue for a strict interpretation of the lex talionis , then he should argue for it and not presume it. Citing Genesis 9:5-6 as a proof text is not a sufficient argument. The problem of applying Old Testament penal principles to the order established by Jesus Christ in the New Covenant is complicated and at least deserves an argument. After all, death is considered “deserved” for more than twenty offenses in the Pentateuch, including for working on the Sabbath (Exodus 31:12-14; 35:2), disobeying a priest (Deuteronomy 17:12), rebelling against one’s parents (Deuteronmy 21:18“21), and letting one’s ox gore more than once (Exodus 21:29).

E. Christian Brugger
Institute for the
Psychological Sciences
Arlington, Virginia

I focus solely upon those parts of J. Budziszewski’s article that rely upon the Pentateuch as scriptural authority for the use of capital punishment by society against murderers. The article did not cite the plethora of other offenses for which Scripture had prescribed capital punishment. They include violence against or cursing of parents (Exodus 21:15; 21:17; Leviticus 20:9; Deuteronomy 21:18-21); desecration of the Sabbath (Exodus 23:12; 34:21; Leviticus 19:3; 26:2; Numbers 15:32-36; Deuteronomy 5:12-15); sorcery (Exodus 22:17; Leviticus 20:27); blasphemy (Leviticus 24:16); adultery (Leviticus 20:10; Deuteronomy 22:22-23); incest (Leviticus 20:11-14); sodomy (Leviticus 18:22; 20:13); rape (Deuteronomy 22:25); apostasy (Deuteronomy 13:2-16); and bearing false witness (Deuteronomy 19:16-21).

It is uncertain whether Professor Budziszewski favors the prescribed use of capital punishment for these other offenses, and if yes, what philosophical justification he may offer for such use of capital punishment. A review of Jewish jurisprudential history would reveal that capital punishment was rarely, if ever, practiced by the Jewish Sanhedrin (i.e., the supreme judicial authority), notwithstanding the many scriptural mandates for its use. Although provisions for capital punishment were never formally excised from Scripture, such provisions were, in practice, rendered nugatory by means of procedural and evidentiary impediments and by strictly circumscribed judicial interpretations.

In understanding the U.S. Constitution, one must first review all relevant cases of the U.S. Supreme Court (and, when necessary, of lower courts as well) that have applied and construed the appropriate provisions of the Constitution. A bare review of the literal text will not lead to a correct understanding of the Constitution. So, too, an accurate understanding of capital punishment as prescribed in the Pentateuch requires a thorough review of the entire body of rabbinic jurisprudence as developed over the millennia.

Whatever the merits of the analysis offered in the article, such merit is not properly based on the sole citation of Genesis 9:5-6.

Benjamin D. Sherman
Saddle Brook, New Jersey

The death penalty is a topic about which I have some knowledge. I was an assistant public defender in Alameda County, California from 1969 to 1989, and I served as the public defender for that county from 1989 to 1999. I have defended death penalty cases at the trial level and supervised the defense of many others.

J. Budziszewski’s article is a cogent refutation of one key element in the conventional wisdom about the death penalty”the belief that Christian doctrine can never condone capital punishment for murder. Professor Budziszewski reminds us that established Christian tradition recognizes justice in the classic Torah-based model and favors individuated mercy, not blanket clemency. In effect, he argues that indiscriminate clemency for murderers perverts both justice and mercy.

With many ethical realists, I accept both the objective reality of morality and the need to make it realistically operative. I believe that moral knowledge is embedded in the warp and woof of reality by the One who created all that is, but I still recognize the need for incentives and disincentives, as well as public authority, to actualize moral knowledge. Moral behavior in the day-to-day world is distributed along a crude bell curve of probity, with the sociopaths and naturally enlightened occupying the respective edges, and the rest of us populating the middle. Even the most self-evident moral principles are generally not self-executing. Most people are governed most of the time by a combination of moral inclination, moral training (currently in decline in our culture), and the classic fear of negative consequences (punishment, which is now weakened by moral relativism). Without such consequences civilized life is doomed. For this reason, ethical realists know that the death penalty is a crucially necessary component of any system of justice.

I’m well aware of the psychological and budgetary costs of administering the death penalty. But surely the costs of murder are even higher. We should never be willing to sacrifice the lives of innocent murder victims on the altar of an ideology or theology that assigns an unreasonably high value to the lives of convicted killers.

Jay B. Gaskill
Alameda, California

J. Budziszewski’s article was very interesting, but also very flawed. The first problem flows from the author’s decision to cite the Torah. Professor Budziszewski states that the Torah requires blood for blood. This is absolutely true. But so what? The Torah also requires the execution of any male who violates any stipulation of the Decalogue. In the case of idolatry the sanction was “to the third and fourth generation.” This means the idolater’s family, at least the males, were to be executed through four generations. Today even Orthodox Jews do not follow all the stipulations of the Torah. Why should we follow any of them? To say that this is what Christian theologians have traditionally done does not justify the practice. St. Paul said that if you take on any part of the Torah you are bound by all of it. The second flaw in Prof. Budziszewski’s argument is that he clearly thinks that one’s life is one’s own possession. I would argue that we are mere stewards of our lives. When a murderer kills someone, he is taking what belongs to God, not what belongs to the victim. When the state takes a life in punishment, it is taking what belongs to God and not to the criminal.

Paul A. Hottinger
Downers Grove, Illinois

I can find only two points with which to quibble in J. Budziszewski’s argument in favor of capital punishment. First, Professor Budziszewski fails adequately to address the tension that exists in the Christian religion between mercy and justice. Reading him, one would think that mercy and justice operate as equally triumphant entities, never conversing or interacting at all. But this idea is contradicted by the Scriptures. The obvious example can be found in the story of the adulterous woman, where mercy effects a dramatic reversal of justice. In this event, public authority applies the law found in the Torah and does so, we have to believe, justly. Jesus, for his part, does not say that the woman does not deserve death. Rather, he says he “will not condemn [her]” (John 8:11). Prof. Budziszewski’s assertion, “justice is inexorable; evil must be punished,” seems at least weakened by this account, considering that, in this instance, justice yields to mercy, and evil is not punished. The second point worth making concerns an omission. Prof. Budziszewski does not address the reality that not every law revealed by God is enforced by the state. Heresy, for example, is a crime, yet it is not one that governments these days tend to recognize (for obvious reasons). But a state’s failure to acknowledge a crime does not lessen its gravity.

Kevin Rulo
St. Louis, Missouri

J. Budziszewski replies:

Jay Gaskill’s insights as a former public defender are helpful. Needless to say, I agree with him that indiscriminate clemency perverts mercy as well as justice. I also agree that the debate about capital punishment should not be driven by the question of whether it is more or less expensive than the alternatives. The issues before us are moral, not budgetary.

I can’t help noticing a strong Marcionite streak in several of the letters”a strange aversion to the idea that the God who spoke to the Patriarchs, disclosed Himself in Jesus Christ, and taught through the Apostles is the same God. They would have me say that we have nothing to learn from the Old Testament, and that the teachings of St. Paul didn’t even apply to his own society, much less to ours. Among the many problems with this view is that it leaves us with a very strange Jesus”a Jesus who didn’t mean it when he said that Scripture cannot be broken and that he had come not to destroy the law but to fulfill it.

John Waiss asks the right question: What deeper reality is God trying to teach by prescribing capital punishment as the punishment for certain crimes? In the case of murder”the only crime I addressed”surely there can be no doubt, because He answers the question Himself. That is why I quoted Genesis 9:6: “Whoever sheds the blood of man, by man shall his blood be shed; for God made man in his own image.” The deeper reality is that man is made in God’s image. It is not despite our being images of God but because we are images of God that murder deserves death. This would seem to be clear.

But here another problem arises. Some of my critics seem to have read only a few paragraphs of my article before tossing it aside in outrage. Budziszewski quotes Genesis 9:6”how outrageous! He must disbelieve in mercy and want all murderers put to death! If only Pastor Waiss had read further, he would have discovered that I discussed the relationship of justice and mercy at length. I even agree with him about some things. In light of scriptural teaching concerning mercy, for example, it would have been harsh and unreasonable had I taken Genesis 9:6 as implying that deserved punishment may never be remitted. But of course that is not how I took it. My point was that the punishment is deserved .

This fact has consequences for how we should think about capital punishment. Among other things, it tells us that pardon is not owed to the murderer as a matter of justice, for from that point of view he ought to be put to death. Rather, pardon is an exercise of that mercy which tempers justice, and the grounds for pardon must be weighed case by case. Put another way, the problem lies with categorical pardon, not pardon as such. I gladly affirm John Paul II’s teaching that capital punishment is to be employed only rarely. What I oppose is the entirely different notion that capital punishment is wrong in principle. By awarding as a right what is properly given as a gift, this attitude debases not only justice but mercy itself.

Although Pastor Waiss”along with Benjamin Sherman, Paul Hottinger, and Kevin Rulo”reproaches me with the many capital offenses in the Law of Moses, the Genesis 9:6 precept long predates the revelation through Moses at Sinai. It is not just another piece of Hebrew civil legislation that no longer applies to us; indeed, it is not a piece of Hebrew civil legislation at all. Consider these three points. First, God announces the 9:6 precept to Noah and his “sons” or descendants, which means”as rabbinical tradition has always acknowledged”not a particular nation or religious community, but the entire human race. Second, the reason given for the precept is the unchanging fact that man is made in God’s image. If it is true that man is the imago Dei in every age, then what this entails is also true in every age. Third, the 9:6 precept is reaffirmed in the New Testament by St. Paul, who says that the magistrate “does not bear the sword in vain; he is the servant of God to execute his wrath on the wrongdoer.”

Pastor Waiss claims that St. Paul’s teaching applies only to societies whose government and people believe as we do, who acknowledge the true God. Does it? In that case we must wonder why Paul applied it to his own society. The people and government of the Roman world were at least as pagan as the people of ours. They are commonly reputed to have been more so.

Professor Stratford and Dr. Brugger observe that, strictly speaking, proportionality does not mean that murder deserves a punishment of death; what it means is that murder deserves a punishment proportional to the crime. Yes, of course. But concretely speaking, is any punishment besides death proportional to the crime of deliberately and wantonly taking innocent human life? Of the various alternatives that Professor Stratford considers, some, like lifelong imprisonment, fall beneath the proportion, while others, like lifelong periodic torture, exceed it. All of them”except perhaps exile, which seems rather hard on the people to whose lands the murderer is exiled”lack that symbolic equivalence by which capital punishment is able to express the significance of what the murderer has done.

If desert were the only consideration in punishment, this would be the end of the matter. There would be no occasion for prudential deliberation. Because that is not my view, I discussed the ways in which the secondary purposes of punishment should enter into prudential deliberation about pardon in individual cases. But prudence cannot justify categorical pardon, because prudence must consider each case in all of its particularity.

A difficulty with Prof. Stratford’s letter is that he sees inconsistencies in both Scripture and papal teaching where I do not”and so, of course, he sees inconsistencies in my response to them. St. Paul says the magistrate does not bear the sword in vain, and Jesus says we should visit the souls in prison. Why may I not insist on both of these doctrines? The Holy Father says that capital punishment is legitimate in principle, and also that under present circumstances it should be rare. Why may I not emphasize both sides of his teaching? I understand that Professor Stratford likes some of these ideas and dislikes others, but how does that make them inconsistent?

He accuses me of another kind of inconsistency, too. I object to torture”one of the alternatives to capital punishment that he suggests”on grounds that torture violates human dignity. By doing so, he complains, I introduce another idea into the argument alongside desert. So I do, but allowing only one idea into an argument is his rule, not mine, and it seems to me a silly one. Desert concerns the meaning of justice; human dignity constrains the manner in which justice is to be done. Both considerations draw their force from the fact that we are made in the image of God. They are not at war. They are both true.

Paul Hottinger’s claim that I consider human beings the owners rather than the stewards of their lives is absurd. He gives no reason for this offhand judgment, it has no basis in what I wrote, and it is the opposite of what I believe. I find it difficult to believe that he was reading the article that I wrote.

Mr. Rulo remarks that not everything in the divine law given to the Hebrew people was meant to be enforced by our own temporal law. This point is quite true, and I have discussed it in numerous writings about natural law”but nothing in my article contradicts it.

Like several of my other critics, Mr. Rulo also thinks I deny that justice and mercy can converse with one another. I close by saying once again how astonished I am that any careful reader could have overlooked the fact that I insist upon their converse and discuss it at length. Here is what I actually wrote: “Justice is inexorable; evil must be punished. This would seem to make mercy impossible; yet there is mercy. As the Psalmist says, ‘Great is thy mercy, O Lord; give me life according to thy justice.’ Somehow the irreconcilables meet and kiss.”

Meeting and kissing”that sure looks like converse to me. Unfortunately, my critics want mercy to kiss the way that Judas did. I beg to disagree. Mercy should temper justice, not betray it.

The End of Care

I compliment Gilbert Meilaender for his careful and systematic comments concerning Robert D. Orr’s position in “Ethics & Life’s Ending: An Exchange” (August/September). Some argue that the intention of a physician who withdraws a feeding tube is not to kill but rather to decrease suffering, cease a useless therapy, and allow a disease to progress naturally. My reply has been to quote the succinct statement of Justice Scalia in his dissent in Cruzan : since the withdrawal of food and water is always fatal, and since a patient in a persistent vegetative state (PVS) will not die but for such withdrawal, it is hard to imagine any other intention than “to make Nancy [Cruzan] dead.” Every physician has had the experience of discontinuing some form of treatment thought to be lifesaving after he found that it was not. In such cases, the possibly burdensome interventions may become optional. The provision of food and water is simply not one of those interventions.

The Court in Cruzan assumed without proof that feeding and hydration were medical therapy rather than normative care. This assumption has been treated as “black letter law” since Cruzan , and thus is actually the most important aspect of that decision. While I believe this conclusion is a classic example of result-driven jurisprudence, it is not determinative of what is or is not “useless” or “excessively burdensome” therapy. Often discussed under the rubric of “futility,” feeding and hydration in a PVS patient are only “futile” if the goal is a return to normal or near-normal cognition. It is never useless in maintaining life.

Pondering Alzheimer’s Disease in this context should send up red flags to anyone familiar with current medical practice. The recent conference sponsored by the International Federation of Catholic Medical Associations entitled “Sustaining Treatments and the Vegetative State: Scientific and Ethical Dilemmas” correctly concluded that the diagnosis of PVS is subject to widespread abuse and misunderstanding inside the medical profession. In my experience and that of others, patients in the final stage of Alzheimer’s are often said to have PVS in order to invoke the legal protections of various state statutes that permit the withdrawal of food and water for PVS but not for other conditions. This has created a “diagnosis creep,” sweeping increasing numbers of vulnerable patients into the nontreatment category.

Furthermore, patients with advanced Alzheimer’s do not always receive full, careful, and detailed care, including adequate feeding and hydration, even when a feeding tube is in place. This occurs because caregivers assume that death is near and anything other than comfort-related treatment is futile. These practices can and do lead to fatal medical error, creating a self-justifying hypothesis that feeding tubes do not prolong life in Alzheimer’s patients.

My greatest fear is that medical practice and social mores have outrun legal and ethical theory, thus making these discussions moot. Have we become the Netherlands while we slept?

Curtis E. Harris
Ada, Oklahoma

The exchange between Robert D. Orr and Gilbert Meilaender raises many important issues. But there are several others that call for attention. One of them is the fascination of Americans with living wills. Medical decisions stemming from living wills often coerce family members to cooperate in evil actions similar to assisted suicide. These actions ought not to be allowed.

A second issue is the importance of honoring death with dignity, which we too often fail to do. No one should be allowed to die in a manner that is painful, sterile, or solitary. In today’s medical world, with hospice and other forms of qualified medical care, killing the patient instead of the pain is not necessary. Consistent with this, doctors should not be guilty of therapeutic obstinacy in keeping patients alive long past a proportionate level of care.

Lastly, there is the importance of recognizing and praising medical heroism. Even in cases where death is a foregone conclusion or disease is in its final stage there remains a nobility in the actions of medical personnel who stay awake nights performing one last resuscitation, counseling the grieving family that they will do all they can, and collaboratively suffering at the bedside with the incurable patient.

Besides affirming a passion for the value of each individual life, such medical heroism stimulates society to greater compassion. The dying never lose their capacity to be loved, and the spiritual enhancement I have seen in these dying individuals when lovingly cared for by family and health professionals is inspiring. The sterile intellectualization of proportionate or disproportionate measures, ordinary or extraordinary means, withdrawing versus withholding, should not trump the value of love.

Aristotle states that courage does what is to be praised. Young people want heroes”those who save lives, fight for lives, mourn for lives. It is no wonder that we see a different kind of individual pursuing a medical career these days; the cynicism of assisted suicide, abortion, and euthanasia has allowed “the smoke of Satan” to distort medicine’s true calling. Instead of hairsplitting, health care needs the impassioned and unflinching affirmation of life.

John O’Keeffe
Colorado Springs, Colorado

Robert D. Orr replies:

In my essay, I supported the shift in terminology from “ordinary versus extraordinary measures” to the use of the concept of proportionality as an effort to “weigh the burdens and benefits of a particular treatment for a particular patient.” Gilbert Meilaender believes this newer terminology is imprecise because, he claims, there is no objective way to weigh burdens and benefits. I agree that making this calculus is a value-laden choice. Professor Meilaender prefers the terms “usefulness” and “burdensomeness.” These terms also require a value judgment. I do not see the advantage of using them instead of proportionality, but I do see a clear advantage of both over the older terms based on standards of “ordinariness” that seem to apply to the treatment measure itself rather than to the judgment about use of the treatment in a given situation.

We cannot make a value judgment about usefulness without asking: Useful for what? What is the goal of the treatment? I would suggest that the goal of using a feeding tube in a person who is unresponsive after resuscitation from a near-drowning event is to give the body time to heal”to see if the person’s awareness will return. After weeks or months of observation with no sign of improvement, the feeding tube is no longer useful since that goal is not achievable. If, on the other hand, the goal of the feeding tube is to prolong the person’s life until another life-threatening illness intervenes, then it is indeed useful. If that choice is made, other choices will be inevitable: whether to use antibiotics for a potentially reversible infection; whether to use cardiopulmonary resuscitation to try to reverse a cardiac arrest; whether to use dialysis for kidney failure; whether to do a heart transplant for irreversible heart failure; etc. In all of these conditions the patient may live several more years if the treatment is successful. Using Prof. Meilaender’s criteria, these treatments would be obligatory because they are at least potentially useful and they would not be burdensome to the person in a PVS, who lacks awareness.

Though he does not explicitly exclude it, Prof. Meilaender seems not to include the burden to others in his value judgment. I understand his reluctance. I get very nervous when I hear physicians or philosophers make the utilitarian argument that a given patient’s life need not be preserved because it places an excessive burden on others. However, the frightening result of some utilitarian reasoning does not negate the consideration of consequences in other moral dilemmas. This calculation was clearly permissible using the older ordinary-extraordinary distinction that Prof. Meilaender prefers, since cost was viewed as an acceptable criterion of decision-making, and excessive cost could render a particular treatment extraordinary.

My conclusion: when a feeding tube in a person confirmed to be in a PVS will not achieve its intended purpose, it may be assessed by some families to exert a significant emotional or financial burden on them; thus its continued use is optional. I have not said that the individual’s life is useless or worthless as Prof. Meilaender infers. Each life has inherent and eternal worth because of the imago Dei , regardless of its utility to others. Many Christians decry any discussion of quality of life, believing it is trumped by sanctity of life in all situations. However, God’s commandment of stewardship requires some discretion in the application of technology and allows us to assess quality of life in our determination of the proportionality decisions we make regarding the use or nonuse of specific medical treatments. Serious, selfless, and prayerful discernment is needed.

I support and commend John O’Keeffe’s plea for compassionate and courageous care at the end of life. However, I am not convinced that praise of “medical heroism” is always warranted. I often counsel against “one last resuscitation” when “death is a foregone conclusion,” and offer instead the “collaborative suffering” at the bedside, which he also says he supports.

Curtis E. Harris and I agree that continued use of a feeding tube in a PVS patient is futile if the goal is returned cognition and that it is not futile if the goal is maintaining life. We disagree on whether the latter is obligatory or optional.

Gilbert Meilaender replies:

I am happy to return the compliment to Curtis E. Harris. He makes his case with succinctness and precision. Moreover, the “diagnosis creep” that he fears seems to me to be a legitimate concern, always in need of our attention. John O’Keeffe is, I think, correct to suggest that living wills”a purely procedural solution to a difficult problem”may sometimes countenance substantive injustice. They are not the answer people once supposed they might be. With some of Mr. O’Keeffe’s other claims I am less ready to agree. In part, he simply leaves me puzzled, since I’m not sure how it is that he wishes to condemn “therapeutic obstinacy” while praising the “medical heroism” that performs “one last resuscitation.” Indeed, I suspect that what he calls “hairsplitting” I call “careful moral reasoning””which is, I would say, one of the tasks of anyone who seeks to love not only with heart, soul, and strength, but also with the mind.

Insofar as Robert Orr returns to our earlier exchange, rather than to our correspondents, I can see little that clarifies the difficulties or goes beyond the defects I found in his original essay.

What’s Beyond Politics

The critical attention First Things has recently accorded to my book Democracy and Tradition is welcome, but I cannot resist responding to Richard John Neuhaus’ charge that my attitude toward American democracy is idolatrous (“Religion and Democracy: A Necessary Tension,” Public Square, June/July). I am indeed committed to, and grateful for, both democratic institutions and the tradition of democratic discussion and reflection. But neither, in my view, is worthy of worship, and neither is the object of my ultimate concern. American democracy is not my religion. As I write in the book, “I am not recommending that we become preoccupied with our identities as members of a civic nation. In my view, this is merely one important concern among others. Indeed, a life lived solely or even largely as an expression of this concern would hold no attraction for me.” At another point I explicitly warn against “idolatry” directed toward the people. At yet another, I argue that “democracy involves substantive normative commitments, but does not presume to settle in advance the ranking of our highest values. Nor does it claim to save humanity from sin and death . . . . Cooperating democratic citizens tend also to be individuals who care about matters higher than politics.”

Gilbert Meilaender’s review of my book (“Talking Democracy,” April) takes a line similar to Father Neuhaus’. Professor Meilaender’s argument depends on the significance he attributes to one of my epigraphs, in which Dewey claims that democracy “is a form of government only because it is a form of moral and spiritual association.” I chose the epigraph to highlight a conception of democracy as an ethically substantive form of life, in which citizens relate to each other as moral beings. Democracy is not, in my view, merely a formal, procedural affair. It involves honoring one another as loci of responsibility and spiritual aspiration. That makes it “a form of moral and spiritual association,” but it does not make it a religion.

What, then, about Fr. Neuhaus’ claim that I “view religion instrumentally, and approve of it to the extent that it serves democracy”? As a non-Christian, I do take an interest in Christian commitments in part because of their political effects. That Fr. Neuhaus and I, like most readers of this journal, are interested in the political effects of Muslim commitments does not entail that we view Islamic religion merely instrumentally. My book does not counsel readers to believe whatever they like as long as it serves democracy. Rather, it explores the possibility that their various sincerely held religious convictions might unite citizens of good will in the struggle for justice and peace. My immanent criticism of distinguished Christian thinkers is intended to show them respect as the particular people they are. It is incompatible with the manipulative attitude implicit in an instrumental view of religion.

A Christian friend from whom I sought advice on a draft of this letter pointed out to me that many believers might find it hard to imagine that a nonbeliever could see anything more than instrumental value in a religious tradition. While I cannot honestly confess faith in a personal God, I suspect that I read Thomas Aquinas, for example, with roughly the same attitude that my friend does: acknowledging the intrinsic value of what Aquinas teaches me about the pursuit of excellence, the depth of human fault, and the mysteries of existence, while also reflecting critically on his claims in light of the rest of what I care about and believe. Aquinas read Maimonides, Avicenna, and Aristotle in the same spirit. As Alasdair MacIntyre says, Aquinas’ way of reading them is one of the things he has to teach us.

The third part of my book begins by pointing out that liberals and traditionalists “have gotten rather good at . . . making their opponents seem despicable or foolish. But neither side has had much success at explaining the other side’s strengths.” For this reason, I have tried to read Stanley Hauerwas and MacIntyre”as well as John Rawls and Richard Rorty”in the hope of learning things from them that cannot be learned (or learned equally well) elsewhere. I have been richly rewarded, because reading them has led me to change my mind on important questions. My “democratic traditionalism” owes as much to religious traditionalists as it does to secular democrats. I prefer to see both groups as conversation partners with much to teach me.

Professor Meilaender ends his review by suggesting that I have overextended the image of conversation by using it to characterize political life as such”a move that, in his view, is not just philosophically mistaken but bad for democracy. What I actually wrote, however, is this: “Conversation is a good name for what is needed at those points where people employing different final vocabularies reach a momentary impasse . . . . The political discourse of a pluralistic democracy, as it turns out, needs to be a mixture of normal discourse and conversational improvisation. In the discussion of some issues, straightforward argument on the basis of commonly held standards carries us only so far. Beyond that, we must be either silent or conversational.”

If I considered conversation a good image for the political as such, why would I contrast it with normal political discourse? It will of course be a rare instance of political speech that transcends an impasse in the way that Lincoln’s Second Inaugural Address transcended the divisions of the Civil War. But it would hardly be bad for democracy in the age of the culture wars if a few political leaders and public intellectuals tried to follow his example.

Jeffrey L. Stout
Professor of Religion
Princeton University
Princeton, New Jersey

The Ethics of Communion

In “Communion & Communio ” (Public Square, August/September) Richard John Neuhaus goes wobbly. Although he does not mention Bishop Michael Sheridan of Colorado Springs by name, that’s obviously who Father Neuhaus had in mind when he described as “problematic” the position that not only pro-abortion politicians but also anyone who votes for a pro-abortion candidate should refrain from communion. I have long admired Fr. Neuhaus’ courage, articulateness, common sense, and above all his vibrant Catholic faith. On this matter, however, Fr. Neuhaus has strayed from the moral principle that a possible good end cannot be justified by an immoral means.

Contra Fr. Neuhaus and Senator Rick Santorum, I would suggest that knowingly voting for a pro-abortion senator when there is an opportunity to vote for a pro-life alternative is a moral evil. A possible retention of Senate control, and a possible advancement of pro-life legislation, does not excuse the moral evil. The end does not justify the means.

I regret that it is necessary to give an incredibly far-fetched example to illustrate the moral nonsense of Fr. Neuhaus’ position. Assume an incumbent United States senator was thoroughly pro-life and yet also supported the rounding up and killing of ten percent of the blacks in Georgia. And assume that the senator in question said that he knew his views on killing blacks had little or no chance of ever coming to pass. Could one morally vote for such a senator under these circumstances? No Catholic, or reasonable person, knowing that senator’s views, could morally vote for such a person simply because it would advance pro-life legislation.

Does the Cardinal Ratzinger “loophole” in his June 2004 letter to Cardinal McCarrick, which would permit one to vote for a pro-abortion politician for reasons other than said politician’s being pro-abortion, justify Fr. Neuhaus’ position? If it does, then someone will have to explain very carefully to me why Andrew Greeley is wrong in saying Catholics can vote for John Kerry. Right now, I am convinced that both Fr. Neuhaus and Fr. Greeley have egregiously misapplied the “Ratzinger loophole,” though for substantially different reasons and motives. If abortion is a moral evil, then no one can knowingly support or vote for a candidate who is pro-abortion. This is the simple truth, and the sooner we act upon it the better. I applaud Bishop Sheridan’s courage and common sense in this regard. I am afraid that the nuancing by Fr. Neuhaus and Senator Santorum is too Kerry-like.

John E. Archibold
Denver, Colorado

In “Communion & Communio ,” Richard John Neuhaus characterizes the statement “anyone who votes for a pro-abortion politician should refrain from communion” as “highly problematic.” I respectfully disagree.

It is necessary to distinguish between formal and material cooperation. In the former case, the act itself is morally evil. It is never permissible. The author of a pornographic article is a formal cooperator. A truck driver who delivers pornographic material to newsstands is a material cooperator. His act may be morally licit, because of its remote connection with erotic abuse and his own economic need. Love for others does not override the duty to love oneself.

If a person knowingly and willingly gives his vote to a pro-abortion candidate, he is formally cooperating in an objective moral evil­”the advancement of the pro-abortion agenda. Father Neuhaus suggests that it was correct for political personages to support pro-choice Senator Arlen Specter “in order to maintain control of the Senate and the possibility of advancing pro-life legislation.” To the contrary, I would maintain that no vague, future benefits provide sufficient reason to vote for a pro-choice candidate. In my estimation, the act of voting for such a politician is itself morally wrong, because it is formal cooperation, albeit remote, in the intrinsically evil act of abortion.

Kenneth F. Slattery, C.M.
St. John’s University
New York, New York

RJN replies:

Regarding John E. Archibold’s letter: the end can justify the means, but it cannot justify any means; it cannot justify evil means. Voting is a means instrumental to effecting political ends. Christians are morally obliged to act toward the political end of legally protecting unborn human life, a duty reinforced by ecclesial authority for Catholic Christians. That end has moral priority over any other end in political dispute. (A truth underscored by Cardinal Ratzinger, who, by the way, does not deal in “loopholes.”) By no plausible argument can a vote for John Kerry be construed as a means to the end of protecting unborn children. Senator Kerry and his supporters do not even attempt to make an argument to the contrary. In fact, they are insistent that the unborn should not be legally protected and that Kerry will make sure they are not. In the case of the Pennsylvania primary, anti-abortion politicians George W. Bush and Rick Santorum believed that a vote for Arlen Specter was a means to several ends, including the protection of unborn children. One could in good conscience agree or disagree with that prudential judgment. Voting is a means to an end. Voting is not a confessional statement.

I believe Kenneth F. Slattery would be correct if a person voted for Senator Specter in order to support his pro-abortion purposes. In the case cited, however, one is voting for Specter precisely in order to frustrate his pro-abortion purposes. We may dispute the political tactic, but the moral distinction is sufficiently clear.

Amity or Animus?

Two instances do not constitute a pattern, and it may be that I have simply run into unusually bad luck, but it is disconcerting that both critiques to which I have been subjected in First Things during the last year or so have grievously misrepresented what I wrote. First, my book on Lubavitch messianism was savagely attacked by David Singer for an argument that it did not make (“The Rebbe, the Messiah, and the Heresy Hunter,” May 2003), and now Richard John Neuhaus, in a more moderate piece (“Anti-Semitism and False Alarms,” Public Square, August/September), compresses several significant distortions of my Commentary article on The Passion of the Christ into the space of a few paragraphs.

Father Neuhaus writes that I “deplore Christian literalists who defend the film as being faithful to history and the gospel texts, as well as Orthodox Jews who defend such literalism and the film more generally.” This sentence clearly gives the impression that I criticize literalists for their literalism. Precisely the opposite is true. My article repeatedly and uncompromisingly defended the right of literalists to their literalism and vigorously criticized Jews and others who denied that right. I expressed satisfaction that my own Orthodox community is sensitive to the concerns of fundamentalist Christians on this score. It was only after adducing detailed evidence that the film is in significant measure patently unfaithful to the Gospels that I criticized literalists and their Jewish supporters who falsely affirm its fidelity.

Fr. Neuhaus goes on to write that “Berger . . . is exercised that the film does not abide by guidelines issued by the Catholic bishops conference for presenting the passion, although he knows full well that the bishops did not sponsor and had no control over the film. Berger expresses sympathy for the judgment of another Jewish critic who said, ‘The solid bridge of trust Jews had with the Catholic Church now lies exposed as merely a drawbridge, readily placed in raised position when it is most needed.’ Perhaps Berger fails to appreciate that Catholics viewed the film in order to witness and enter into the suffering and death of their Lord, not to check out its conformity to episcopal statements on Jewish-Christian relations.”

I indeed expressed sympathy with Catholic scholars who wanted the film to follow the guidelines in question, but my criticism (and that of the other Jewish critic) directed at the bishops conference was aimed clearly and specifically at the largely laudatory review of the film by its office of film and broadcasting, which makes no mention whatsoever of the conference’s own guidelines. The bishops decidedly sponsored that review, and they decidedly had control over it. Moreover, I immediately went on to say that despite this serious incident, the “deep change” effected by ecumenical activity over the years has not been neutralized.

As to the sarcastic allegation that I fail to appreciate the fact that Catholics viewed the film to identify with Jesus’ suffering and not to determine its conformity to guidelines on interfaith relations, I can only scratch my head in bewilderment. Here is what I wrote about this point: “The film’s reception rapidly demonstrated the near irrelevance of the framework within which much of the earlier discussion had taken place. Did viewers react to the movie based on the degree of its deviation from the criteria established by the bishops conference? The very question is comical. While the earlier debate did alert filmgoers to the specter of anti-Semitism, the vast majority reacted through the filter of their religious commitments.” I did not direct a whisper of criticism toward the masses of Christian viewers for doing this.

In an accurate but still misleading passage, Fr. Neuhaus goes on to quote my exhortation to traditionalist Christians to understand that reasonable people who do not hate them”and in some cases like them very much”can feel that there are grounds for concern about the film. He continues as follows: “[Berger] also urges Jews to be patient with evangelical Protestants, whose political support is so crucial to the safety and well-being of the state of Israel.” The sentence in my article represented by the phrase “be patient” and placed by Father Neuhaus in a largely self-interested context reads as follows: “Jews for their part will have to force themselves to recognize that the fervent embrace of this film by traditionalist Christian audiences is not necessarily a sign of hostility or even indifference toward them, that it emerges out of positive religious emotions as well as understandable resentments flowing from the demonization of the religious right by influential sectors of American public opinion.” A bit earlier, I had indeed discussed the importance of evangelical support for Israel, but the emphasis here is on the intrinsic reasons for evincing understanding of the reactions of traditionalist Christians, a category by no means restricted to evangelical Protestants. Indeed, the comment about demonization alludes to an earlier passage where I wrote a vigorous, empathetic, even impassioned tribute to the defense by such Christians of core moral values and where I decried the abuse to which they are subjected for their admirable stand.

Finally, a brief word about Fr. Neuhaus’ concluding point, which does not address my article. His assertion that the Anti-Defamation League has implied that “American Christians” are waiting for an excuse to kill Jews”not to mention his further assertion that Jewish reactions to the film demonstrate to Christians that “many Jews have fear and loathing for their religion and, by extension, for them””is incendiary and goes well beyond any judicious assessment of the evidence. They do not contribute to the amity that Fr. Neuhaus says he hopes for.

David Berger
Broeklundian Professor of History
Brooklyn College and
The Graduate Center
City University of New York

RJN replies:

I appreciate Professor Berger’s eagerness to clarify his views but am sorry that he thinks I am guilty of “several significant distortions.” First, I did not say he criticized “literalists” in general, whether Christian or Jewish, but those literalists who defended The Passion as being in conformity with the biblical texts. Second, it is not accurate to suggest that his criticism of the bishops conference was limited to the review by the conference’s film office. Apart from the question of whether the bishops do or should “control” reviews issued by that office, Prof. Berger is also sharply critical of the bishops for distancing the conference from charges by a group of scholars, well before the film’s release, that The Passion is anti-Semitic. Berger wrote: “The scholars can hardly be blamed for having assumed”naïvely, as it turned out”that the [bishops] conference took its own published standards seriously.” At another point, he wrote of “this betrayal of decades of Catholic-Jewish dialogue,” and then, of course, there is the reference to the drawbridge being raised. Third, I frankly do not understand his unhappiness with what I said about his comments on Christians and support for Israel. In his article he discusses the matter with considerable delicacy. Finally, my observation about fear and loathing is not incendiary but is very sobering and is, I am afraid, amply supported by a fair reading of the evidence. That is all the more reason to deepen the conversation between Jews and Christians to which Prof. Berger and I are unquestionably devoted.

Hebrew Catholics?

I would like to respond to the review of my book, Salvation Is From the Jews (Briefly Noted, August/September), lest some unsuspecting reader believe that the review actually represents the content of the book. The statement, “Schoeman became active with the growing community of those who call themselves Hebrew Catholics,” contains two errors. Not only did I not become active with any community of Jewish Catholics, but I have studiously avoided the term “Hebrew Catholic” when referring either to myself or to other Jews who have entered the Church. This second point is crucial, for many Jews today have falsely become convinced that Christianity is meant only for gentiles, and thus that to recognize Jesus for who he is leads inevitably to the loss of one’s Jewish identity. Yet a major purpose of my book is to argue that in entering the Church, a Jew not only does not cease to be a Jew, but becomes even more Jewish”that is, a completed or fulfilled Jew. In fact, the term “Hebrew Catholic” appears in the book only within the name of the organization that uses the term.

Roy Schoeman
Gloucester, Massachusetts

A Catholic Islam

In his useful essay, “Islamic Counter-Reformation” (August/September), Paul Marshall says that hoping for an “Islamic Reformation” makes little sense because Islam already has so many Protestant features. To that, I would add two points.

First, in The Decline of the West , Oswald Spengler claimed that Islam is a Reformation, or perhaps the Puritan phase of a Reformation, within what he called Magian culture. In this instance, old Oswald was on to something.

Second, Islam has already tried Mr. Marshall’s suggestion of moving in a “Catholic” direction. Shia Islam (once a larger part of the Muslim world than it is today) already has a hierarchy and a “magisterium.” As we see in the Islamic Republic of Iran, however, these features do not always serve to mitigate Jihadist tendencies.

John J. Reilly
Jersey City, New Jersey

Paul Marshall replies:

Since my article loosely applied the Christian notions of “Reformation” and “Counter-Reformation” to another religion, Islam, I can hardly complain that Mr. Reilly does something similar. But I think he pushes too far. He is right that Spengler describes Islam itself as a Reformation and that there is something to this, but, by this point, the historical analogy with Protestantism has been stretched so far that it loses its meaning. The same can be said about the analogy between Shiism and Catholicism. Yes, Shiites are more hierarchical, but there is freedom to choose which hierarch one will follow, and this is rather different from a Counter-Reformation.