The following amicus brief was filed recently before the U.S. Supreme Court in the cases of Loce v. New Jersey and Krail et al. v. New Jersey.I hope you will count it no presumption that I seek your leave to address you on behalf of the unborn child. Like that child I can be called an outsider. I am not an American citizen. My parents were Albanian. I was born before the First World War in a part of what was not yet, and is no longer, Yugoslavia. In many senses I know what it is like to be without a country. I also know what it is like to feel an adopted citizen of other lands. When I was still a young girl I travelled to India. I found my work among the poor and the sick of that nation, and I have lived there ever since.
Since 1950 I have worked with my many sisters from around the world as one of the Missionaries of Charity. Our congregation now has over four hundred foundations in more than one hundred countries, including the United States of America. We have almost five thousand sisters. We care for those who are often treated as outsiders in their own communities by their own neighbors-the starving, the crippled, the impoverished, and the diseased, from the old woman with a brain tumor in Calcutta to the young man with AIDS in New York City. A special focus of our care are mothers and their children. This includes mothers who feel pressured to sacrifice their unborn children by want, neglect, despair, and philosophies and governmental policies that promote the dehumanization of inconvenient human life. And it includes the children themselves, innocent and utterly defenseless, who are at the mercy of those who would deny their humanity. So, in a sense, my sisters and those we serve are all outsiders together. At the same time, we are supremely conscious of the common bonds of humanity that unite us and transcend national boundaries.
In another sense, no one in the world who prizes liberty and human rights can feel anything but a strong kinship with America. Yours is the one great nation in all of history that was founded on the precept of equal rights and respect for all humankind, for the poorest and weakest of us as well as the richest and strongest. As your Declaration of Independence put it, in words that have never lost their power to stir the heart: "We hold these truths to be self-evident: that all men are created equal; that they are endowed by their creator with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness. . . ." A nation founded on these principles holds a sacred trust: to stand as an example to the rest of the world, to climb ever higher in its practical realization of the ideals of human dignity, brotherhood, and mutual respect. . . . Your constant efforts in fulfillment of that mission, far more than your size or your wealth or your military might, . . . have made America an inspiration to all mankind.
It must be recognized that your model was never one of realized perfection, but of ceaseless aspiration. From the outset, for example, America denied the African slave his freedom and human dignity. But in time you righted that wrong, albeit at an incalculable cost in human suffering and loss of life. Your impetus has almost always been toward a fuller, more all-embracing conception and assurance of the rights that your founding fathers recognized as inherent and God-given. Yours has ever been an inclusive, not an exclusive, society. And your steps, though they may have paused or faltered now and then, have been pointed in the right direction and have trod the right path. The task has not always been an easy one, and each new generation has faced its own challenges and temptations. But in a uniquely courageous and inspiring way, America has kept faith.
Yet there has been one infinitely tragic and destructive departure from those American ideals in recent memory. It was this Court's own decision in Roe v. Wade (1973) to exclude the unborn child from the human family. You ruled that a mother, in consultation with her doctor, has broad discretion, guaranteed against infringement by the United States Constitution, to choose to destroy her unborn child. Your opinion stated that you did not need to "resolve the difficult question of when life begins." That question is inescapable. If the right to life is an inherent and inalienable right, it must surely obtain wherever human life exists. No one can deny that the unborn child is a distinct being, that it is human, and that it is alive. It is unjust, therefore, to deprive the unborn child of its fundamental right to life on the basis of its age, size, or condition of dependency. It was a sad infidelity to America's highest ideals when this Court said that it did not matter, or could not be determined, when the inalienable right to life began for a child in its mother's womb.
America needs no words from me to see how your decision in Roe v. Wade has deformed a great nation. The so-called right to abortion has pitted mothers against their children and women against men. It has sown violence and discord at the heart of the most intimate human relationships. It has aggravated the derogation of the father's role in an increasingly fatherless society. It has portrayed the greatest of gifts-a child-as a competitor, an intrusion, and an inconvenience. It has nominally accorded mothers unfettered dominion over the independent lives of their physically dependent sons and daughters. And, in granting this unconscionable power, it has exposed many women to unjust and selfish demands from their husbands or other sexual partners.
Human rights are not a privilege conferred by government. They are every human being's entitlement by virtue of his humanity. The right to life does not depend, and must not be declared to be contingent, on the pleasure of anyone else, not even a parent or a sovereign. The Constitutional Court of the Federal Republic of Germany recently ruled that "the unborn child is entitled to its right to life independently of acceptance by its mother; this is an elementary and inalienable right that emanates from the dignity of the human being." Americans may feel justly proud that Germany in 1993 was able to recognize the sanctity of human life. You must weep that your own government, at present, seems blind to this truth.
I have no new teaching for America. I seek only to recall you to faithfulness to what you once taught the world. Your nation was founded on the proposition-very old as a moral precept, but startling and innovative as a political insight-that human life is a gift of immeasurable worth, and that it deserves, always and everywhere, to be treated with the utmost dignity and respect. I urge the Court to take the opportunity presented by the petitions in these cases to consider the fundamental question of when human life begins and to declare without equivocation the inalienable rights which it possesses.
Modern politics was born, in a more than chronological sense, in the aftermath of the wars of religion. Wolfhart Pannenberg has pointed out that until the seventeenth century it was assumed that uniformity of belief was a prerequisite for orderly social life. After decades of bloodshed, violence, and terror in the wars of religion, however, many came to something like the opposite conviction that, in Pannenberg's words, "religious passion destroys social peace." Given a violently divided Christendom, the only sensible solution appeared to be to excise from political life the cause of these horrors-namely, particular theological claims-and to replace them with universally acceptable principles derived from human nature and natural law. Modern politics was thus founded on the principle that religion is a private concern, useful insofar as it inculcates socially approved virtues of toleration and honesty, dangerous if vigorously pressed into the political arena.
Under the circumstances, it is difficult to fault those who arrived at this solution; they were, after all, desperate for peace. Yet, understandable as it may be, the solution is impossible to implement. The notion that politics can function in a religious and theological vacuum is a myth. Politics is concerned with justice; justice is inescapably a moral concept; morality in turn is inescapably religious; and true religion, in the Christian perspective, inescapably includes particular theological commitments. Christianity entails the invariably political announcement that Jesus Christ, not Caesar, is Lord; to concede that political actors may legitimately ignore this highly specific theological claim is nothing less than an abandonment of the Christian position. If the Christian right accomplished nothing else, it should be recognized as an historically significant movement for its frontal assault on the modern myth of value-neutral politics.
It remains to be seen, however, whether this foundational modern principle can be challenged without a reversion to the mayhem of religious war. This dilemma has become particularly acute because, for all its animus toward modernity, the Christian right has made one of the most characteristic of modern political beliefs the foundation of its entire agenda. That assumption is, simply put, that the state has jurisdiction over morals. The fact that the name "Moral Majority" was given to what amounted to a political movement betrays this assumption, as does the "social issues agenda" of the Christian right.
This has not, however, been the traditional teaching of the Church. While the Church has insisted that the justice administered by the state should be rooted in Christian principle, historically the Church had not ceded the oversight of morality as such to the state. Of course, the line between administering justice and correcting morals is blurry, as many lines are. But the difficulty of making a distinction does not mean that no distinction can be made. Augustine, to take one example, disapproved of prostitution, but he did not believe that suppressing it was a proper use of civil authority.
As Ruben Alvarado has recently argued in the Reformed journal Contra Mundum, Christian theology has throughout the ages understood the censura morum to be within the jurisdiction of the Church. The Church, it was believed, could afford to be more flexibly responsive to the nuances and contours of individual situations than the state, and the Church was believed to possess more finely grained tools of correction than the blunt instruments of law and punishment. Alvarado cites the example of German Calvinist political theorist Johannes Althusius, who defined the discipline of morals as "the inquisition into and chastisement of those morals and luxuries that are not prevented or punished by laws, but which corrupt the souls of subjects or squander their goods unproductively." This inquisition is not the same as legal jurisdiction; rather, it acts "with respect to vices that do not come into the courts because of the lack of an accuser or denouncer, and yet offend the eyes of good and pious citizens. For the sake of example, these vices receive a most serious rebuke and notation, even though recourse is not had to legal punishment." Though assigned to the Church, this was a public, not a private, ministry, "crucial to public health."
In the wake of the collapse of the ecclesiastical administration of the censura morum in the modern world, there is nowhere else to turn for the correction of morals than the institutions of law and politics. American politics has thus ceased to be an arena of justice and has instead become the battleground on which moral-cultural issues are contested. Historically, the theory was, as articulated by Zacharias Ursinus, that "the Church . . . looks to the reformation and salvation of the offender; the magistrate to the execution of justice and the public peace." With the Church no longer fulfilling this public ministry, the penal system fills in the gap by shifting its focus from retribution and restitution to rehabilitation.
Both sides of the culture war operate on the premise that if immorality is to be corrected, it must be made illegal; the war is about whose definition of immorality will prevail. The Christian right's agenda, as much as that of the ACLU, assumes the rightness of what might be called the "ecclesiasticized state." A more radically Christian approach would be for the Church to challenge this assumption by reasserting her own jurisdiction over morals. In the pluralistic West, of course, the Church cannot claim to exercise this function over the whole of society. The Church could, however, at least begin by accepting responsibility for her own members.
Revival of the Church's oversight of morals will not occur without conflict; what I am suggesting is emphatically not an easy way out of our political impasse. Already, suits have been filed against churches attempting to exercise precisely this type of oversight with their own members. Logically, it is difficult to see why the gay rights agenda should stop at the door of the church; churches have already been sued for violating the civil rights of members censured for practicing homosexual sodomy. If abortion is the absolute constitutional right that some claim, churches that censure abortion providers and advocates will eventually be perceived as fundamentally treasonous. Nor can a revival of the Church's oversight of morals take place in the absence of practical catholicity among the churches. How, after all, can we speak realistically about the churches' accepting responsibility for their members' morals when the churches cannot agree on what those morals should be?
For all that, a revival of the Church's active practice of the censura morum-in short, a revival of the practice of church discipline, including the sanctions of rebuke, censure, and excommunication-would challenge, more consistently than the Christian right has done, the modern assumptions both that religion is strictly private and that the state is competent to correct morals. Such a revival would, moreover, provide some glimmer of hope for avoiding the unhappy choice between renewed religious war and privatization of religion.
Readers of First Things have not had to complain about lack of coverage of the abortion issue, but they may not have been as aware of the progress on the other issue. A number of prominent politicians represent the new consensus. There is Governor William Weld of Massachusetts, whose credentials as a moderate Republican of possibly presidential timber have been enhanced by his firm pro-choice position and his tenacious efforts to reintroduce capital punishment in the state. On the Democratic side there is former Governor Douglas Wilder of Virginia, who has been hailed as a living example of the civilizing effect that black elected officials are increasingly having on American government. A few months ago, still on Gov. Wilder's watch, there was a small problem. A prisoner due to be executed was unable to walk. (It should be mentioned that he was also black, so no racial prejudice could be charged.) The state was getting ready to construct a ramp so that this individual could be wheeled right into the death chamber. In the event, this proved to be unnecessary: he felt that being rolled in on a wheelchair was undignified and, somehow, he managed to limp to his execution.
However, without in any way diminishing the achievements of leaders like Weld and Wilder, it is President Clinton himself who embodies the new consensus in the most impressive way. A certain moral high point came in the 1992 electoral campaign when Dan Quayle in one of his speeches questioned Clinton's good faith in claiming to be tough on crime. George Stephanopoulos indignantly pointed out that, during his period as governor of Arkansas, Clinton had allowed four executions to be carried out. So he did. Actually, he signed the orders for about seventy executions, but most of these, through no fault of his, were not carried out. Even in the enlightened state of Arkansas desperate defense lawyers have recourse to various legal maneuvers to stave off executions-just the sort of frivolous delaying tactics that the Supreme Court, in another show of growing ideological consensus, is now determined to stamp out.
The last person executed under Clinton's governorship was Rickie Rector. The details of this case were reported in a long story in, of all places, the New Yorker. Rector had participated in a robbery in the course of which he had killed a policeman. He then shot himself in the head in an attempt at suicide, either in an effort to avoid capture or as an act of remorse. He failed to kill himself, but was left severely brain-damaged. He had the mental age of a child of five. As usual, the case made its way through the courts, but in this instance all attempts to avoid the execution of the death sentence failed. Clinton was then out of state on the campaign trail. He returned to Little Rock so as to be in his office while the execution was carried out. Consequently, there is no possibility of denying him due credit for it. According to eyewitness accounts Rector was quite unaware of what was happening to him. When the executioner had difficulty inserting the poison syringe, Rector tried to help him. It had been Rector's habit in prison to save a portion of his dessert cake for an evening snack. When his cell was cleaned out after the execution, the usual piece of cake was found left behind. He had evidently planned to eat it afterward.
The Rector case raises the interesting question of whether a severely retarded individual should be subject to the death penalty. An argument could be made that it is more humane to execute someone who does not know what is happening than someone who is fully conscious of the proceedings. This question cannot be pursued here. Rather, attention should be drawn to the international dimension of this issue. The United States is the only Western democracy that continues to carry out the death penalty. There had, of course, been an interruption while the Supreme Court pondered whether the constitutional prohibition of cruel and unusual punishment applied here. Since the wise (and, incidentally, strict-constructionist) decision that it did not, executions have been steadily increasing and in a number of states have become routine. Texas, with the highest number of individuals on death row, has inaugurated a work program just for them-a garment factory. (Assurances have been given that none of its products will be exported to China.) The Clinton crime bill, of course, greatly increases the number of offences punishable by death under federal jurisdiction. Some foreigners, especially Europeans and Latin Americans, have difficulty understanding this. The Spectator of London recently published a cartoon showing an individual being led to an electric chair in front of which a sign said, "Please wait to be seated." This, of course, was intended as a blatantly anti-American comment, such as one has come to expect from the English right. Yet perhaps there was here also an unconscious acknowledgment of a feature of American exceptionalism-the capacity for compassion and courtesy even when robust measures have to be taken.
There is no reason to fear that the United States will abandon its splendidly isolated practice of capital punishment any time in the near future. There is no constituency for abolition either on the right or the left. However, as more and more people move through America's death row, two modest proposals may be in order.
The first (Republicans will note with approval) would require no state intervention. It is high time that the several occupations engaged in life termination be given proper professional training. Increasingly now the death penalty is carried out by lethal injection, a procedure that is not only more humane than the earlier methods but is also inherently a medical procedure. The indicated curriculum would plausibly combine paramedical and paralegal training. It would unite in one program the technical personnel dedicated to abortions, executions, and assisted suicides. In addition to the instructors in practical procedures, the faculty could include morticians, bereavement counselors, and medical ethicists. The course would culminate in a diploma in Individualized Exit Facilitation (IEF). One or another Southern state university could certainly be induced to pioneer in this field.
The second proposal would respond to the aforementioned international aspect of this issue. Yet another growing bipartisan consensus concerns the place of human rights in American foreign policy. The United States Information Agency should make a concerted effort to explain the American position on life termination in all its aspects and its relation to fundamental human rights. The Agency for International Development should include individuals with IEF diplomas in its programs in the underdeveloped countries. Most important, the State Department should include the status of IEF laws and practices in its annual report on human rights in the world. This last suggestion would also have a domestic benefit. Year by year, Americans can read the State Department report and be proud. They already know how superior they are to China. It is time to feel superior to Switzerland.