#464: Is the Common Good the Enemy of Sovereignty—or Vice-Versa?

  A recent Harvard discovery suggests why this Sunday's French Presidential Elections French should interest Americans, and especially American Catholics.

"France for the French" vs. France, member of Europe

The French Election

Some observers have said the 2017 election for president of France is all about sovereignty, since Marine Le Pen wants to pull France out of the European Union and Emmanuel Macron wants to stay in the EU but reform it.

Le Pen’s supporters believe the EU Impinges on France's sovereignty as a nation; they want their country back, their money back, their borders closed, their industries protected, their immigrants expelled. They want “France for the French.”

Macron's supporters often do not actually support his politics or agenda, but they support France's continued membership in the EU. They know this means sacrificing some of the nation’s sovereignty: the Euro replaced the Franc, trade is subject to EU "free trade" regulations, the borders are open to anyone from the EU, even the traditional French license plates have been replaced by euro-style plates. But those prepared to vote for Macron believe that giving up some national sovereignty serves the common good of both the French people and Europe as a whole, especially in bringing peace to a chronically war-torn continent (see CrossCurrents # 463).

Catholic Social Teaching (CST) acknowledges the dilemma here. On the one hand, CST makes promoting the common good a top priority, which leaves little room for a self-serving agenda that ignores the effects on others. Pope Francis in particular has decried the “Exclusion” of others that occurs when policy is set to benefit some narrow part of any population.

On the other hand, CST also values “subsidiarity”—the principle of keeping decisions at the most local level possible, and solving problems by the participation of those closest to the problem.

The EU clearly aims to serve the common good of Europeans, but that means decisions get made, not at the local or regional or even national level, but at the international level which sometimes is far removed from the people affected. So common good and subsidiarity sometimes clash. How can this clash be addressed?

Some, like Julius Krein, editor of American Affairs, take a hard line view of sovereignty. He argues that internationalism of any kind cannot really achieve the common good: for him, the real common good comes only with national sovereignty:

“The only democratic institutions that we have are national institutions.  So if you get rid of the nation-state, what you’re really doing is getting rid of democracy.”

In other words, Krein considers that, to serve common good, all sovereignty must be national.  This is exactly what Le Pen is proposing in her campaign, and it is exactly what Macron is opposing.

Wednesday Night's Debate

But it strikes me that such a hard line is completely arbitrary and also completely contrary to our experience as Americans.  That’s why last week’s Harvard discovery is so interesting.

The Harvard Find

Two Harvard researchers, Danielle Allen and Emily Sneff, have recently reported the discovery of an early handwritten parchment copy of the Declaration of Independence--only the second such copy in existence.  They call it the “Sussex declaration” after the location of its discovery in England. 

The significance of the discovery is that this version is slightly different from the one in the national archives.  That original in 1775 reflected the practice of the Continental Congress of having state delegations sign official documents as a group, with state labels for each group.

But the Sussex declaration dates from the 1780s.  By then the War is over, and war debts have led to conflicts among the states, especially farming states vs. the coastal mercantile states.  Eventually these conflicts would lead to a constitutional convention, but already the clash was between federalists (who saw the new nation as a single united people) and anti-federalists (who saw it as a collection of states).  The issue here was whether sovereignty would belong to the nation as a whole, or whether each state would retain its own sovereignty. 

The Sussex Declaration

This newer version shows the balance shifting to the federalists. Allen points out the key difference:

“The Sussex Declaration scrambles the names so they are no longer grouped by state. It is the only version of the Declaration that does that…This is really a symbolic way of saying we are all one people.”

Of course, during the time between these two versions, the US was governed by the Articles of Confederation, adopted in 1777 and ratified in 1781.  The guiding principle here was to preserve the independence and sovereignty of each state.  It legalized the Continental Congress, but gave that Congress very little power. There was no president, no judiciary, no executive agencies, no tax base--which meant no way to pay off the war debts.  Even the Congress had only one body, comprised of state delegations.

Shifting Sovereignty

The Articles of Confederation failed, because the national government lacked enough power to perform its essential duties.  This provoked a Constitutional Convention and eventually led to the U.S. Constitution which governs us today.  The essential difference is that the U.S. Constitution shifted much of our sovereignty from individual states to the nation as a whole.  But the shift involve major compromises, including a Congress split into two houses; Senate representing the states, and the House of Representatives representing the people by proportional vote.

In other words, US history is rooted in a compromise which recognized that sovereignty needed to be shared between the nation and its member states.  When Krein says that our only democratic institutions are national institutions, he is simply ignoring our own history.

What is happening in Europe follows a direct analogy to U.S. history.  If we think of France as a member state of the European Union, we can see that the issue of sovereignty, and the conflict over how much sovereignty France should sacrifice to the common good of Europe, is precisely the same issue as the argument over States’ rights vs. Federal power in the US.

From the point of Catholic Social Teaching, this means that American history can help show us how the tension between the common good and the principle of subsidiarity can be resolved.

We don’t need to look into the distant past to observe this history.  Recent events provided ample examples.  These show that debates over shifts in sovereignty reflect a tension that still exists in American Life.

Current Examples

1. Death Penalty. When Dhzokar Tsarnaev was tried for his role in the Boston marathon bombings, his trial took place in Massachusetts, which rejects the death penalty—and yet he received a death sentence, because his crime was determined to be a violation of Federal law.  Thus Massachusetts could not control the judicial process because the authority of the Federal government prevailed. The state does not enjoy absolute sovereignty

2. Sanctuary Cities. When Donald Trump attacks the notion of sanctuary cities, he is pitting the rule of local law enforcement in preserving public safety against the interests of the immigration authorities to locate and detain illegal immigrants.  Most states that have sanctuary cities are claiming that their law enforcement officials cannot be forced by the Federal government.

3. Healthcare. The current struggle to repeal Obamacare involves the question of whether the U.S. government will continue to mandate coverage, or the states will have the option to seek alternative plans.  Obamacare relied on the sovereignty of the Federal government; the repeals are pushing for state sovereignty.

4. Border Wall. Donald Trump’s border wall involves the Federal government imposing construction in many border states that oppose a wall.  Here again, the common good becomes the rationale for overruling local decision-making.

5. Tribal Sovereignty. When the Wampanoag Tribe tries to establish a casino on Martha’s Vineyard, this pits the tribe as a sovereign nation vs. the power of the local community, and invokes both state and Federal power to resolve the issue.  In this case, the dispute is about sovereignty on four different levels.

6. Gay Marriage. In 2003, the Massachusetts Supreme Judicial Court legalized gay marriage, exercising its own authority to regulate marriage on the state level.  But when the US Supreme Court imposed its Federal authority over state laws and regulations, gay marriage became legal across the US. 

7. “Romneycare.” Obamacare’s rules for health care were remarkably similar to the rules that already existed in Massachusetts under the program supported by a Republican Governor Mitt Romney. Romneycare reflected the state’s sovereignty, Obamacare reflected the federal government’s sovereignty

The Moral of the Story

In all of these cases, the question of sovereignty has been resolved on a case-by-case basis.  It is true that some people would prefer the Federal government to always impose its will over states, while others would prefer that states always get to decide all matters for themselves without any Federal interference.  But the vast majority of Americans accept a constant balancing act between two (or more) levels of legitimate authority.

Thus life in “these United States” involves a chronic but healthy tension between the sovereignty of the nation and the sovereignty of the states.  Neither sovereignty is absolute, so a Federal System like ours requires repeated negotiation to redefine the shifting limits of each sovereignty.

And that is exactly what Europe is going through today, especially if we think of each country as something like our states. 70 years after the Treaty of Rome established the idea of a united Europe, its federal system is still being formed.

The European Union has reached a moment much like the crisis caused by the Articles of Confederation.  In other words, its governing treaties are failing to provide the right mix of sovereignty between the European Union itself and the member states. 

It seems that, if Europe is to serve both the common good and honor the principle of subsidiarity, it will need to find ways to democratize its operations and reflect comment local and national interests and preferences rather than make all decisions by some remote process that does not reflect public will.

But the failure of the Articles of Confederation did not lead to the failure of the United States; it required instead a reformed federal system. Europe faces the same challenge, and France’s commitment to meeting that challenge (rather than quitting to protect its own sovereignty) will say much about Europe’s future prospects.

 © Bernard F. Swain PhD 2017

#430: 10 Reasons to Choose the Life Penalty

After several weeks of a trial to convict the Boston Marathon bomber who had already admitted his guilt, the question now is: will the jury choose life or death?

Martin Richards, the 8 year old boy killed in the Boston Marathon bombing, went to school just a few hundred yards down the street from my house.  This week his killer’s trial has entered the penalty phase, when jurors will decide if Dzhohkar Tsarnaev will be sentenced to death or to life without the possibility of parole.

But just before the penalty phase began, the boy’s family publicly requested that the death penalty be set aside.  No one suffered more than the Richards.  Martin’s sister lost a leg, his mother suffered serious injuries, and his father was forced to make the soul-rending decision to leave his dying son in order to say his sister.  Their plea now is to be released from the further suffering the death penalty would bring.  Known as active Catholics in a heavily Catholic neighborhood, the Richards intended to speak only for themselves, yet they can also be seen as representing modern Catholicism’s increasing rejection of lethal violence.

The taking of human life has many forms, but none is more central to Christianity than the death penalty.  Jesus himself was a victim of capital punishment, and the instrument of his execution--the cross--has long become the “trademark” of his followers and their faith.  Indeed, we’ve become so accustomed to the cross, and even the crucifix, that we might be shocked to imagine, as one Bostonian suggested this week, walking into a church to find Jesus hanging from a noose or strapped to an electric chair.

Most of Jesus’ apostles were also killed by the authorities.  We call them martyrs, but they effectively spent their last days on death row.  The same is true for more than a few Christian saints even into the 21^st century, executed for their faith.  The image of Christians killed by ISIS is tragically fresh news. 

Sadly, Catholics had been not only victims of the death penalty, but agents of execution as well.  The Inquisition regularly tried and condemned “heretics” and “witches,” even if the actual killing was done by civil authorities.  And we should never forget that France’s patron saint, Joan of arc, was only canonized after being burned at the stake following the Church’s condemnation.  Over the centuries, then, the Church has been both the victim and the perpetrator of the death penalty. 

But recent years have brought a dramatic shift, as Catholic teaching has come to reject virtually every argument used to justify capital punishment.  That teaching has had its effect: fewer than half of U.S. Catholics support the death penalty, down from 70% a generation ago.

But it is still worth seeing why the Church now opposes virtually any use of the death penalty, even for cases as uniquely heinous as the Boston Marathon bombing.  In view of Pope Francis’ plea to build an encounter culture, these reasons might help us to encounter others at this very moment, when the death penalty is urgently debated.

The Vatican, the Catechism of the Catholic Church, the U.S. bishops collectively, and many bishops of individual states have gone on record opposing the death penalty.  They have joined together in a growing consensus about why the death penalty is wrong.  Drawing on their views, here are 10 good reasons:

1. Playing God.  Catholics believe the power over life and death belongs to God alone.  Murderers usurp that power for themselves, which is the most profound reason for calling murder evil.  And executioners, no matter how good their intentions, usurp God’s power as well.

2. Cycle of violence.  Catholics are supposed to believe that violence is not the greatest power on earth.  We believe, in fact, that love can conquer violence.  But answering violent acts that take human life by taking another human life means we give in to the power of violence and thereby perpetuate it.

3. No deterrent.  There is no evidence that executing people reduces crime.  In fact, states that execute have higher crime rates than states that don’t.  And European countries, all of whom ban executions, have much lower crime rates than the U.S.

4. Expensive and inefficient.  It cost several times more to implement a death sentence than it does to impose life without parole.  Years or decades of appeals often mean criminals eventually die on death row anyway before they can be executed.

In the specific case of the Marathon bomber, the killer’s lawyers publicly stated that, had the federal government taken capital punishment off the table, Tsarnaev would have pleaded guilty, thus avoiding any trial at all, and would already be out of sight, serving a life sentence without parole. Thus the trial was only needed for one thing: to secure a death penalty. That means that this week’s penalty phase—as well as the entire trial before--are but one wasteful part of the unnecessary price we pay by insisting on the death penalty.

5. Prolongs victims’ sufferings.  Execution is not magic.  It will not bring back the dead, or make their families suffer less.  On the contrary, the death penalty keeps a case alive far longer than the disappearing act of a life sentence.  This is precisely why the Richards family fears the anguish they will undergo after a death sentence.  The Boston Globe’s Kevin Cullen, who has listed all the terrorists already waiting on death row since 1993, predicts Tsarnaev’s death sentence would never actually be carried out.

6. Racism.  In U.S. history as well as today, minorities are disproportionately targeted by the death penalty.  In part, this reflects the difficulty poor people have obtaining effective counsel.  The result: a double standard by which better-off criminals are likely to evade the death sentence. Thus, while African-Americans make up only slightly more than 10% of the American population, they constitute more than 40% of those on death row.

7. Innocence. According to the Death Penalty Information Center, 152 people sentenced to death have been exonerated since 1973. An increasing number of these were exonerated when DNA evidence proved they were innocent. On average, these people spent 11.2 years on death row before being released!

No human institution will ever be perfect, so we must always be prepared to identify and correct our errors. But once a person is executed, it is too late to correct that mistake! How many innocent have been executed before they could be exonerated? How many innocent deaths are justified by our desire to kill the guilty? 

8. Cruel and unusual?  Cruel and unusual punishment is prohibited by the U.S.  Constitution, but those words have yet to be clearly defined.  Yet every attempt to invent a more “humane” form of execution ends up in grotesque suffering, mistakes, and mishaps.  The result is the irony of people shocked to learn that a state might return to firing squads because lethal injections have proved so difficult to implement.  As the rest of the world leaves the death penalty behind, the American practice of it appears even more to be cruel and unusual. 

Some argue that while in general the death penalty is wrong, in the specific case of the Marathon bomber it is uniquely justified.  But of course that simply makes the penalty that much more unusual, and no less cruel. 

9. Last resort.  In its attempts to promote a “seamless garment of life,” the Catholic Church now teaches that the death penalty must be regarded as a last resort--to be used only when there is no other way to protect society from a criminal.  But the high security prison in Colorado to which the U.S. has already sent convicted terrorists means that any threat is removed, and any further suffering is prevented.  In practice, then, the Church’s teaching of a last resort faces us with the truth that there may be no situations where there is no other alternative.  Clearly, in this case, as in virtually every other case, life without parole is an available option.  Those seeking death face the burden of explaining why the alternative cannot be justified.

10. It is bad for us.  Virtually all advanced democracies have eliminated to the death penalty--except the U.S.  By now, moving beyond executions is the world’s mark of a truly civilized country.  Given the alternatives, capital punishment serves only one real purpose: revenge. And the world now regards revenge as a relic of a more primitive culture.  In short, the presence of the death penalty in our society separates us from the truly civilized world. Thus resorting to the death penalty appeals to the worst instincts in our nature, and makes us less as a people. 

Listen to the joint statement of Jessica Kensky and Patrick Downs, newlyweds who each lost limbs in the Boston Marathon bombing, as they describe the spiritual challenge before us all:

In our darkest moments and deepest sadness, we think of inflicting the same types of harm on him.  We wish that he could feel the searing pain and terror that for beautiful souls felt before their death, as well as the harsh reality of discovering mutilated or missing legs.  If there is any one who deserves the ultimate punishment, it is the defendant.  However, we must overcome the impulse for vengeance.  

By overcoming that impulse for vengeance, by    rising above those dark instincts and choosing life, we become more—we become a better people.  And still justice is done.

© Bernard F. Swain PhD 2015