Mark Shea, commenting on the role of a Catholic Supreme Court judge and the Constituion's "cruel and unusual" clause, says:
I think the death penality is an intractably moral question. I think judges have to draw on some kind of moral tradition if they are to decide it. And as a Catholic, I would prefer that the moral tradition they draw on would be the one revealed by the Son of God, as distinct from whatever they happen to pull out of their butts, as Harry Blackmun's was.
First, as a cautionary note towards those that argue against the application of the death penalty, as some of Mark's commentators are: murders happen in prision. Life imprisonment is no guarantee against preventing crime. There is an excessive amount of crimes committed against other inmates in prison, from rape to murder. A man already serving a life sentence in a state with no death penalty is immune from punishment if he kills another inmate. And that is an injustice, to be sure.
On the greater issue of how to interpret the Constitution with Catholic values verses originalism / textualism, the issue bears greater scrutiny than I think Mark has undertaken. Mark, I know I've criticized you in the past for a shoot-at-the-hip attitude of not looking into the details on things, but in this case I think a sincere re-examination would do all of us a lot of good. Professor Bainbridge had a great thread about this on his blog, which he updated with supplemental posts (here, and here), that responded to critiques about why bishops don't deny communion to judges. I believe Amy Wellborn linked to that thread; I don't know if Mark did.
Basically, a judge, acting prudently and sincerely, has an obligation to interpret statutes and constitutions with plain meaning (textually) and if the meaning is vague (as it may be with a word like "unusual"), to use the original understanding of the term. A judge should not legislate from the bench, period. An originalist judge is, for lack of a better term, a REAL judge. A judge that legislates from the bench is not a REAL judge. However, that is not to say that a Catholic understanding of Right Reason cannot guide him. I agree with Mark that Catholic values should inform a judge, but ONLY because those values are correct. Using Catholic values is not, however, "legislating from the bench." Catholic judges can be REAL judges, and in fact many are. But, how to distinguish between a Catholic properly using Catholic values to inform him, and a judge who lets post-modernist secular values inform him? How can I fairly say that a Catholic judge using his Catholic values could be a "REAL judge?"
Critics will say that I merely want to have the cake and eat it too; why cannot postmodern humanist secular values guide a judge if it's ok for Catholic values? The difference is, as things stand now, Catholic values are fully consistant with sincere and honest efforts at judging (meaning that they're fully compatible with originalism). I have said over and over, from the Roberts nomination until today: There is NOTHING in the Constitution incompatible with Catholic values. Nothing. (usually, people make the mistake of assuming the Constitution requires abortion as a fundamental right when it does not. Once that assumption is out of the way, it's easy to see that the Constitution and Catholicism are perfectly compatible.) In contrast to that, secular humanist values often interfere in properly judging the plain meaning of the Constitution. Secular humanist values must re-write the Constitution to create fake rights to abortion, euthenasia, affirmative action, etc. Judges with secular humanist values are often corrupted into legislating from the bench. An originalist, Catholic judge need not do such a thing, and in fact will not do that, ever.
However, on Prof. Bainbridge's blog, I brought up, and could not answer, the hypothetical of a Catholic judge interpreting a Constitution that explicitly said in plain text that abortion was a fundamental right. I was stumped by that example, because it would be an instance of Catholic values clashing with the clear role of a judge in plainly interpreting text. But that example does not, in my view, exist at this point in time (even on issues like the death penalty). Given the POSSIBILITY of that example, it's important we have this conversation. Also, we should bear in mind that even though we KNOW that Catholic values are right, we cannot use that as an excuse to say that it's ok to use them while saying that a secular humanist cannot draw on his "values". We have to come up with better reasons, and unfortunately that's what I'm struggling with. As long as the Constitution remains as it is now, there should be no problem. But if the Constitution were ever to explicitly include plainly evil things (such as an explicit, fundamental right to abortion), then Catholic judges would be in a real bind, and would probably either have to serve under false pretenses or not serve at all.
Update: Professor Bainbridge links to a book review that Justice Scalia recently wrote, which talks about how to interpret the law. I read this article a while ago, and now I think it provides a clue to my thinking. In Scalia's concluding words, he notes that secular humanist judges are essentially searching for God in their search for the law. Catholics have no such mysteries, since we know who God is. He is our savior. He is Jesus. Catholics are not forced to look for the mysteries of the universe and define them in our law, as those who legislate from the bench are prone to do. Scalia notes:
If, as Smith contends, a hypothetical author is not up to the job of resolving law’s quandary [of what it means], neither, it turns out, is Smith himself. His book describes what he believes to be the quandary but does not resolve it, examining and rejecting various solutions—except, of course, the classical one, which is out of bounds because it violates the “norm prescribing that religious beliefs are inadmissible in academic explanations.” The book’s last paragraph acknowledges that “perplexity is not a resting place” but concludes that “we would perhaps be wise to confess our confusion and to acknowledge that there are richer realities and greater powers in the universe than our meager modern philosophies have dreamed of.”
Hmmm. Richer realities and greater powers than our modern philosophies have dreamed of. Could there be a subversive subtext here? Why does Smith bring in at the outset of his book a third ontological category—religion—which he immediately disclaims, not because it is wrong, necessarily, but because it violates academic ground-rules? And why does his book repeatedly point out how the “classical school”—premised, alas, upon religion—was coherent where modern jurisprudence is not? And why does his penultimate chapter describe at length (though with the academically correct acknowledgment that it is “foreign to prevailing ontological assumptions”) the work of Joseph Vining, which speaks of a hypothetical author who “would need in some sense to be actually present,” and “to display qualities of caring, and of mindfulness”? Lawyers, Vining says, either “must believe what they do with legislation is often foolish and deceptive; or they do believe and confess a belief in an informing spirit in the legislated words that is beyond individual legislators.” Holy cow! Could it be that . . . ?.....
Could it be,...that Smith is inviting, tempting, seducing his fellow academics to consider the theological way out of the quandary—the way that seemed to work for the classical school?As one reaches the end of the book, after reading Vining’s just-short-of-theological imaginings followed by Smith’s acknowledgment of “richer realities and greater powers in the universe,” he (she?) is sorely tempted to leap up and cry out, “Say it, man! Say it! Say the G-word! G-G-G-G-God!” Surely even academics can accept, as a hypothetical author, a hypothetical God! Textualists, being content with a “modest” judicial role, do not have to call in the Almighty to eliminate their philosophical confusion.
Scalia sums it up perfectly. Textualists do not have to call in the Almighty to eliminate their philosophical confusion of the law. We merely need to look to the text of things and figure out its plain, basic, understandable meaning. And that need not change unless the Constitution begins to plainly and expressly permit explicitly evil things.
Further Update: Steve Dillard at Southern Appeal, responding to Mark, notes: "Catholics should be extremely leery of condoning any form of extratextual reasoning that is not already enshrined in the Constitution. The Constitution's meaning is fixed in time, except to the extent the document is amended to alter its meaning. " This statement would be fine as long as the Constitution did not expressly permit or mandate anything evil. But if there were ever an amendment that explicitly said that abortion was a fundamental right, faithful Catholic judges would be strangled in their attempt to interpret it.
In a July 3, 2004 letter to Cardinal McCarrick, Cardinal Ratzinger (now Pope Benedict) made clear that Catholic judges cannot enforce clearly evil laws:
"A member of the judiciary ordinarily does not have the same capacity to initiate change that a member of the legislature has. . . . While acknowledging the difficulties and limitations inherent in each level and branch of government, the Church urges public officials to be aware that they cannot hold themselves excused from their duties as disciples of the Lord. They must be able to stand before the Lord with a clear conscience and say they defend the rights of all human beings, at every stage of existence, to the best of their ability. They must never take refuge in the specious argument that they must enforce the law, whatever it may be. Persons of good conscience must refrain from seeking office if the price of holding office is the enforcement of evil laws which allow the killing of the innocent. "
Since the Constitution right now doesn't state that abortion is a fundamental right, or any other evil thing, then Catholic judges have no problem. But the fact remains, if the Constitution were amended to become a document of evil, then Catholics could not honestly serve as judges (it's an open question whether they could licitly serve as judges while doing everything in their power to destroy the evil effects of such a law).
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