The “other” Catholic vote, Part II
Following on an interesting discussion in a previous post about Supreme Court Justice Antonin Scalia and his view of the relationship between his Catholic faith and his rulings–or rather the lack of said connection–John Thavis over at the CNS blog picks up the thread and expands on it greatly. After summarizing Scalia’s conversation with Tim Russert, Thavis notes the Vatican’s take on this. He writes:
Not everyone thinks the distinction between a legislator and a judge is so clear-cut when it comes to the responsibilities of Catholics in public life.
In 2000, Pope John Paul II told the International Union of Catholic Jurists that Catholic magistrates share in the mission to build a society that conforms to the demands of the Gospel. He warned against considering the law as something uninformed by faith:
“There are even cases in which the magistrate and the legislator take decisions independently of any moral value, as if positive law could serve as its own foundation and prescind from transcendent values.”
I asked one informed Vatican official whether the church viewed the moral responsibilities of a Catholic judge as significantly different from those of a Catholic legislator. He said no, not in the case of a constitutional court, which is often called on to make political decisions.
“If we’re telling politicians to respect the natural law, the obvious conclusion is that this would apply to a judge even more. The Constitution is not supreme over natural law,” he said.
John went on to recount Scalia’s 1996 address at the Gregorian, which he reproduces, and notes Scalia’s reluctance to invoke natural law claims that are becoming very much a theme of this pontificate. Interesting stuff. Thoughts?
Speaking as a lawyer, not very many of us put much weight on Natural law as a reliable source of “what the law is.” I suspect that is one of Scalia’s biggest points of departure from the Vatican.
The statements of John Paul II and the unnamed Vatican official only make sense to me, based on my understanding of what the Catholic Church teaches. How could there be any role in any system, including that of Supreme Court Justice in the United States of American, that relieved a person of moral responsibility for his or her decisions, when those decisions have real-world consequences? It makes no sense to me at all.
The role of legislator and the role of judge are different, but it seems quite obvious to me that it is in many cases the duty of a legislator to represent his constituents or to follow the Supreme Court’s interpretation of the constitution, without regard to what his or her personal beliefs are. In that respect, the legislator has just as much of a “role” as a judge. As I said elsewhere, those who argue differently are basically saying that a Catholic legislator must always act according to what the Church teaches (at least in matters of life), but the Supreme Court Justice must never do so, since the justice is supposed to be neutrally and objectively interpreting the Constitution or the law. It just doesn’t make any sense to me that the people with the most power (justices) are off the hook, and the legislator or presidential candidate is bound to follow Church teaching.
If the Pope decreed that catholic jurists must decide constitutional questions in accordance with the natural law–of course as enuntiated by the Pope–Catholic jurists, if they accepted this decree, would nevermore be appointed to judgeships. The papal claim that natural law is binding on all would not silence the critics.
I would add to David’s posst that the role of the Church and the role of the State are also very different and very distinct. Even before The Declaration on Religious Freedom, theologians such as Augustine and Aquinas argued that it was legitimate for the state to tolerate certain immoral behaviours such as prostitution. Civil toleration does not imply religious truth and not every truth claims of religious bodies needs to be enacted into legislation. We need not legislate every virtue nor criminalize every vice.
Even now, especially with the Declaration on Religious Freedom, the Church cannot expect the state to support its truth claim through positive law.
The vocation of legislators is a true vocation. They are not simply rubber stamps of their constitutents. Most forms of democracy are a republican form in which the representative is not elected simply to advance the will of the constituents but to apply his or her conscience on matters affecting civil life. That is why character does count in elected officials.
What that means in real terms really needs to be left to the legislator. As for constitutional issues, of course judges should not usurp the rights of the electorate. That said, they originally were set up as a further POLITICAL check and balance. They are, therefore, exercising a political role, in the exercise of their judgement. It is inescapable.
Joe:
not very many of us put much weight on Natural law as a reliable source of “what the law is.”
I am not a lawyer but there has to be some philosophy of law. If law has no relationship with transcendent values (I prefer that to natural law which always seemed a bit vague to me – not that transcendent values are clearer but discussion of values invites dialogue and consensus where as law invites opposition and an adversarial posture), then the law is an expression of politics which as I said in another post quite likely is anyway. Ironically though the only reason I engage in the political process is because I believe on faith that there is transcendant values that lie at the heart of human experience and needs to be expressed. But that itself is a matter of faith.
Leaving aside Scalia’s “originalism,” which makes no sense to me, I think that he’s correct concerning the special function that judges have. This point needs an argument that would take too long here, but I do believe that a sound argument is available. The Vatican official’s comment is of no help as it stands. Perhaps he has a more nuanced position, but, if so, it is not reported here.
Natural law is only a philosophic argument and a dangerous concept.
The Holy Office formally taught in 1866 the following: “Slavery itself. . .is not at all contrary to the natural and divine law…
It is always misleading to quote part of a text, misleading to the point of disingenuousness. [The Devil may quote the Bible...]. The Instruction of the Holy Office [#1293: 20 June 1866] can be found at p. 107 in Fr, Joel Panzer’s THE POPES AND SLAVERY [1996]. It is far more nuanced than the bare-bones quotation given. The basis of the question is whether a man may licitly bind himself to service.
Anent strict construction – and in connection with slavery – Justice Roger Taney writing in the Dred Scott decision for a large majority of the courts noted simply that slavery – despite the Declaration – was not outlawed in the Constitution [indeed the 20 year slave trade clause seems to have encouraged it] and that not only slaves but free blacks and Indians were not given the rights of citizens in almost all the states including most of the Northern states. The last auction of slaves in New Jersey occurred in Horace Greeley’s hometown of North Branch in 1846. .
I always hate resorting to the Nazi analogy, but…What if you were a judge in Nazi Germany and the constitution allowed for the persecution of the Jews? You assent? Assent and resign? Or just resign? Or what?
I can see why commenters would have problems with using natural law as a guide. I do wonder, however, what this all means for public figures like Scalia. He is clearly disagreeing (dissenting?) with very clear church teaching. So why is he feted at Catholic churches and institutions and others are not?
I’d also cite what i thought was an arresting passage from Benedict’s nunaced (overly so, I think) address to the United Nations, in which he says:
“Experience shows that legality often prevails over justice when the insistence upon rights makes them appear as the exclusive result of legislative enactments or normative decisions taken by the various agencies of those in power. When presented purely in terms of legality, rights risk becoming weak propositions divorced from the ethical and rational dimension which is their foundation and their goal. The Universal Declaration, rather, has reinforced the conviction that respect for human rights is principally rooted in unchanging justice, on which the binding force of international proclamations is also based. This aspect is often overlooked when the attempt is made to deprive rights of their true function in the name of a narrowly utilitarian perspective. Since rights and the resulting duties follow naturally from human interaction, it is easy to forget that they are the fruit of a commonly held sense of justice built primarily upon solidarity among the members of society, and hence valid at all times and for all peoples. This intuition was expressed as early as the fifth century by Augustine of Hippo, one of the masters of our intellectual heritage. He taught that the saying: Do not do to others what you would not want done to you “cannot in any way vary according to the different understandings that have arisen in the world” (De Doctrina Christiana, III, 14). Human rights, then, must be respected as an expression of justice, and not merely because they are enforceable through the will of the legislators.”
Read it all here: http://www.vatican.va/holy_father/benedict_xvi/speeches/2008/april/documents/hf_ben-xvi_spe_20080418_un-visit_en.html
“What if you were a judge in Nazi Germany and the constitution allowed for the persecution of the Jews? You assent? Assent and resign? Or just resign?”
I, for one, would not particapte in any form in a totalitarian government and would personally resign if I was required to act against my conscience as a government official in any government.
“Justice Roger Taney writing in the Dred Scott decision for a large majority of the courts noted simply that slavery – despite the Declaration – was not outlawed in the Constitution”
Yikes, another Catholic judge!
Orestes Brownson wrote an essay about the Dred Scott case in which he was very critical of Justice Taney for having voted in contradiction of his Catholic faith.
David,
I think you are basing your argument on some really mistaken assumptions. Before I would address them, however, I would appreciate a clear statetment of what Church teaching Scalia is allegedly dissenting from, and exactly how, by his actions he can or has expressed that dissent.
The mere mention of Nazi judges or judges from the former Soviet Union makes it obvious to me that if the “role” of judge ever exempts a person from relying on his or her own moral judgment, and instead obliges that person to make judgments only within a well-defined system of thought and rules, that can only be so if the system is worthy of being deferred to in such a manner. Clearly not every nation has a judicial system that warrants suspension of personal, moral decisions by its judges. The question in my mind is if the United States is such a system in every respect, or are there questions that come before judges or Supreme Court Justices in which a Catholic should either vote in a particular manner or recuse himself.
I find it extremely difficult to understand how “pro-life” Catholics can argue that the Church teaches personhood begins at conception, yet Catholic justices may in good conscience rule to permit abortion because their reasoning tells them they must use some definition other than the Church’s of what a person is.
Sean: I guess my judgment (which is all it is) is that because Scalia rejects the express wishes of recent popes as regards the moral duty of a judge to work to end abortion and similar violations of natural law, he is placing himself in a spot that most politically conservative Catholics at least would see as a dissenting position. He has also expressed his own private view that he has no problem with states passing their own abortion legislation, and as a jurist he continues to back capital punishment in opposition to clear church taching against it. (Not to mention the teachings and statements of the US bishops on this and other matters.) His jurisprudence may be all well and good, and think there is much to be said for not imposing “Catholic teaching” on the US Constitution. (I also think, as I’ve said, that judges should be informed by their faith and moral framework, and indeed they are.) But I wonder, given his views, how he gets a pass as a Catholic in public life while others do not?
OK David,
Answer me this – The law of self-defense, includes the defense of others. One may, typically, use deadly force to prevent the death or serious bodily injury of another human being. Catholic teaching is clear that the unborn are other human beings.
Would a Catholic policeman who has an actual duty to protect innocent human beings be dissenting from Catholic doctrine if he or she fails to use force or arrest an abortionist or a woman procuring an abortion? If not, why not?
Sounds like ethics class. I actually have no idea if he would be dissenting; it seems complicated to me, rather than a yes or no, black and white situation.
Two thoughts: I think we tend at this thread to view judicial decsions in the best light of how a justice presents himself – though in major cases, his thinking may be colored by many factors and pressures ,
I think david’s comment on the relationship of rights and justice is quite germane.
In criminal justice, the Hon. harold Rothwax, in his book “Guilty” argues against cases of guilt that are clear being overthrown in appeals by slight technecalities.
If rights are grounded in justice, how is the common good served?
David,
If it is only about outcomes – that is that Catholic public officials must always act in a way that ensures a “Catholic” outcome – and not acting as a Catholic within the role you properly play in a society, then it seems to me that you can’t explain it.
We are so used to the idea that the law is whatever judges say it is, that when a judge says he can’t do something because the law doesn’t give him the authority, we can’t seem to process it. That is all Scalia is saying. He lacks the authority to do the things or make the decision you say he should to be in conformance with Catholic teaching.
Say a judge has a divorce case before him and there is an explicit statute that says he must enter a final decree 180 days after certain filings and agreements are made. 180 days pass. He is Catholic, and agrees with the Church’s teaching on divorce, so he delays entering the final decree. He has the POWER to do this, but he doesn’t have the AUTHORITY.
Scalia is saying that juges can’t just do what they have the power to do because they are Catholic, or a Democrat, or a Freemason, or whatever. They have to have the authority. Just as a policeman may have the power to shoot up an abortion clinic, but he doesn’t have the authority. He is saying his authority is derived from and bound by, among other things, the actual words of a law or the Constitution.
It is easy then to jet down the slippery slope to Nazi judges, and I agree that a Catholic cannot be an absolute legal positivist. So at some point, a judge clearly can’t be both a good Catholic and follow the law. I submit, however, that that point is clearly more distinct in cases where, like Nazi Germany, there are absolutely no alternatives within the system. But we are a representative republic, and have alternatives – difficult though they may be. For a judge, however, those alternatives are primarily in the hands of the people and their elected representatives.
That is the critical difference. A politician has both the power and the authority to take action. That doesn’t mean that action will be successful, just that he or she can do something. They may not be re-elected, and they may fail, but they have the authority to act and so have a different obligation.
Finally, in a representative government, for it to remain representative, a judge must recognize that the elected branches may make laws with which he or she disagrees. The Church teaches that individuals have free will and that collectively that free will involves a right to self-determination. Legislators, however, are agents of the expression of that will and have free will of their own, so they are not subject to the same tension, and are free to make choices and decisions that a judge is not.
Says one Vatican official, “The Constitution is not supreme over natural law.”
Says me, “Whose version of natural law?”