Kmiec on Holy See’s Pelosi visit statement, Justice Scalia, duties of jurists

This is in from TIME.  

You might go back and review this entry before reading ahead.

My emphases and comments.

Friday, Feb. 20, 2009
Catholic Judges and Abortion: Did the Pope Set New Rules?
By Douglas W. Kmiec

Much has been made of the statement on abortion that Pope Benedict XVI issued earlier this week after meeting with Nancy Pelosi. But the Vatican’s choice of words as they related to the Speaker of the House was quite predictable, [I don’t know… I wasn’t sure any remarks would come from the Vatican.] given her pro-choice stance and her position as a high-ranking Catholic Democrat. The Holy Father simply made clear their differences on the issue and reminded the American politician of her responsibilities as a Catholic to protect life "at all stages of its development."  [Notice how he framed that?  He put that in such a way as to make it sound as if the Pope simply agreed to disagree with Nancy Pelosi.  They just "differ" with each other.]

What was quite surprising, and overlooked, had to do with a different branch of the U.S. government. If you read it carefully, the statement is actually quite radical [?  Let’s see where he goes with this.] — perhaps unintentionally so. The brief message — just two short paragraphs — draws no distinction between the moral duties of Catholic policymakers and Catholic judges to work against abortion. (See pictures of Pope Benedict XVI’s trip to America.)  [hmmm…. why would Catholic teaching not apply also to Catholic judges who advance abortion rights?]

As a lifelong Catholic, Pelosi could not feign surprise at being called upon by the Church to use her gift for persuasion to restrict abortion legislatively, or at least not to be its advocate. But until now, the Church had not formally instructed judges in a similar fashion. [Okayyyy…. but, should the Church have to?  Perhaps judges haven’t been on the radar screen as much unless they are high profile positions, such as SCOTUS.]  As written, the Pope’s statement has the potential, at least theoretically, to empty the U.S. Supreme Court of all five of its Catholic jurists and perhaps all other Catholics who sit on the bench in the lower federal and state courts.   [You see what Kmiec is doing here, right?  He is basically saying, back off pro-abortion politicians or you will have to also pressure your darling originalist (strict interpretation) Justices.  Watch where he goes.]

"His Holiness," the statement read, "took the opportunity to speak of the requirements of the natural moral law and the church’s consistent teaching on the dignity of human life from conception to natural death which enjoin all Catholics, and especially legislators, jurists and those responsible for the common good of society, to work in cooperation with all men and women of good will in creating a just system of laws capable of protecting human life at all stages of its development." (See the top 10 religion stories of 2008.)

To get a sense of just how sharp a break with the past this is, all one has to do is take a look at what Supreme Court Justice Antonin Scalia, himself a Roman Catholic, wrote in 2002 in an essay in First Things. "[Abortion involves] … private individuals whom the state has decided not to restrain. One may argue (as many do) that the society has a moral obligation to restrain. That moral obligation may weigh heavily upon the voter, and upon the legislator who enacts the laws; but a judge, I think, bears no moral guilt for the laws society has failed to enact," he wrote. "Thus, my difficulty with Roe v. Wade is a legal rather than a moral one[I]f a state were to permit abortion on demand, I would — and could in good conscience — vote against an attempt to invalidate that law for the same reason that I vote against the invalidation of laws that forbid abortion on demand: because the Constitution gives the federal government (and hence me) no power over the matter."

Until the Pelosi statement, the prior instruction from the Church’s Congregation of the Doctrine of the Faith and encyclical writing seemed to confirm Scalia’s reasoning. There was an implicit understanding that the Church’s admonition to its faithful to change the law permitting the choice of abortion had to be understood and applied in light of the scope of office. Catholic legislators make policy and could be so instructed, but judges, as Scalia wrote, had "no moral responsibility for the laws [their] nation has failed to enact."

It is, of course, quite possible that the Holy Father was not intending to impose a new moral duty on Catholic jurists at all, and that in the rush of the event, someone in the Vatican press office mistakenly included the judicial terminology. But taken at its word, the Pope’s new admonition to "jurists" to undertake an activist, law-changing role suggests that the concept of Originalism (adhering to the textual meaning of laws at the time of adoption) subscribed to by Scalia and often by three of the four other Catholics on the Supreme Court (Clarence Thomas, Samuel Alito and John Roberts) is a morally deficient method of constitutional interpretation.   [So, Kmiec is using the Holy See’s statement about the Pelosi visit to attack an originalist interpretation of the Constitution.]

No doubt Scalia would insist that since abortion is not in the constitutional text, disavowing an abortion right would square Scalia and the other Catholic jurists with the Church. But not so fast; Scalia says abortion can be legislatively permitted or not as the people choose, and he will enforce whatever is democratically chosen. That’s hardly what the Church is hoping from Catholic jurists, is it

If the Holy Father is pointedly telling not only Congresswoman Pelosi but also judges that they must use their office to undo the legal protection for abortion, how is this consistent with their judicial oath, or with the fact that the Constitution in Article VI puts religious belief off-limits for selection or qualification for office, including judicial office? In particular, precisely what is a Catholic jurist to do when confronted with the application of laws restricting abortion that, as interpreted by the courts in rulings like Roe v. Wade, would be unconstitutional? If a Catholic judge invalidated laws restricting abortion in conformity with the constitutional precedent, he or she would presumably be cooperating with the evil of abortion. On the other hand, [here it comes] if a Catholic judge ignored the precedent — perhaps seeking to avoid Church sanction, such as the threats of communion denial aimed at pro-choice Catholic lawmakers by some bishops in the past election [Kmiec’s big problem, it seems.] — there would likely be increasing claims of religious bias.

In 2002, when discussing the death penalty and his faith, Scalia expressed relief that the Church had yet to find the death penalty categorically immoral since that was neither his personal conclusion nor the Originalist position on the Constitution. "I like my job, and would rather not resign," he wrote in 2002. "[I]n my view, the choice for the judge who believes the death penalty to be immoral is resignation, rather than simply ignoring duly enacted, constitutional laws and sabotaging death penalty cases. He has, after all, taken an oath to apply the laws and has been given no power to supplant them with rules of his own. Of course if he feels strongly enough he can go beyond mere resignation and lead a political campaign to abolish the death penalty — and if that fails, lead a revolution. But rewrite the laws he cannot do."

Why does Scalia recognize a duty to resign were the law of the Constitution dealing with the death penalty to become inescapably at odds with Catholic teaching, but not in like circumstance for abortion? [Can he know that Justice Scalia doesn’t think that about abortion?]  For Scalia, it is the difference between two qualitatively different constitutional claims — a textual one (the death penalty being clearly anticipated by the Constitution) and a nontextual one (abortion). But under Rome’s new direction to jurists  [For a guy who wants to drill into an issue, how is it that he is so sloppy with his categories at this point?  He calls the statement released by the Vatican Press Office "Rome’s new direction".  But the Holy See has proper means and instruments for giving "direction" to jurists.  And that means isn’t going to be a press release!  Did that escape Kmiec’s notice?  Or has the change to attack Justice Scalia gotten him all excited?] to get busy correcting the law, that interpretative nicety won’t cut it. The duty for Scalia and the other Catholic jurists turns on what faith requires, not what the text does or does not explicitly say. No more Pontius Pilate[In case you missed it, Kmiec just likened the Catholic Justice Scalia to Pilate.]

Might there be a different, less intrusive course for the Church? [Doug to the recuse!] Yes: clarify the Pelosi statement by continuing to observe the difference between a jurist and a legislator. [?] That may be awkward from the standpoint of the unyielding lines of moral rather than political principle, but it has the merit of following the instruction of St. Thomas Aquinas, who argued that "all should have some part in the government; for in this way peace is preserved among the people, and all are pleased with such a disposition of things and maintain it."  [I am not sure how that quote of the Angelic Doctor actually supports what he is saying.  Maybe a well-trained Thomist can fill us in.]

Few are pleased with the abortion jurisprudence as it is. But imposing moral duties on Catholic jurists that are incompatible with their envisioned judicial role in a democracy is hardly likely to make it better[Why?  Does Kmiec believe jurists shouldn’t be expected to make judgments also based on God’s law?  Are jurist to adhere only to man’s positive law?  Is he telling the Holy See that it should says jurists need not consider the Church’s moral teaching.]

Kmiec is chair and professor of constitutional law at Pepperdine University and author of Can a Catholic Support Him? Asking the Big Question about Barack Obama (Overlook/Penguin 2008).

 

What is this really all about?

It could be that this is really a message to the Obama Administration about what sort of input he, Kmiec, would offer to the Holy See when future stick situations arise… if only he, Kmiec, were to be selected as the next… say… perhaps…. Ambassador to the Holy See?  Maybe?

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45 Responses to Kmiec on Holy See’s Pelosi visit statement, Justice Scalia, duties of jurists

  1. Dan says:

    I would ask Mr Kmiec one question,

    Is there any part of the US Constitution that mentions protecting the lives of American citizens from murder, as a right held by all men?

    If there is not, then the Constitution is flawed.

    If there is, then the US Constitution protects the rights of the unborn.

  2. Lepanto says:

    Kmiec’s piece is all over the place.

    While I think that Scalia’s judicial philosophy is somewhat flawed, at least when it comes to his refusal to use natural law in adjudicating important issues like abortion, I’m not sure what Kmiec is arguing.

    Jurists do have a responsibility,but it is very unclear what that is. Much less clear than it is for legislators who actually make laws or refuse to make laws that can encourage or discourage abortion (like Kmiec’s man Obama).

    As Fr. Z pointed out, this is just a press release which doesn’t have many important implications for philosophy.

    Nonetheless, this brings up an important question for Catholic jurists as to whether a judge should interpret only the text of the constitution or also subject laws to the principles of higher natural moral law. Dr. Robert George at Princeton as well as many other Catholic thinkers have written very thoughtful pieces on this subject which are much more lucid than Kmiec who, through his sycophancy to Obama, has unfortunately pretty much discredited himself in my opinion.

  3. Andrew, UK and sometimes Canada says:

    Same old hermeneutic of rupture. Another article looking for “radical” changes in teaching where, in fact, none exist.

  4. mpm says:

    a) “Jurists”, in general, are not “judges”, but those who are engaged in the legal profession, including teaching it, as Kmiec does. The obligations the Vatican release spoke of are certainly “binding” on all jurists, but on each according to his or her possibilities.

    b) It seems to me that Scalia’s statement means simply this: “if they don’t pass a law, I, as a judge, have no warrant to enforce something that doesn’t exist, because judges are paid to interpret the law, not provide good policy for a nation.” I can see that line of reasoning, and I can understand the principle he is using.

    c) Pelosi is a total “advocate” and politician. She, and the other “Catholic” democrats should be waging a campaign to liberate the Democratic Party from its enslavement to the abortion plank. There is absolutely no evidence of such a campaign, now or ever. As some sort of leader of the DP this one is squarely on her shoulders, whether she realizes it or not.

    I think this is just Prof. Kmiec exercising his recent role as the Democratic Party’s “token Catholic” “water-boy”. His idea that this is a “new directive” merely shows how ignorant he is about Catholic doctrine down the centuries: the profession of Law and the ethics of being a jurist have been on the curriculum of Catholic universities for centuries. I think his quote from Aquinas works against his own argument, even if Aquinas was talking about this issue. All should have a part, but not all the same part. Pelosi’s part is different than Scalia’s: she works to make laws and policy, he simply interprets what the law says.

    The sub-text here is the following: Shit, what the Vatican said doesn’t make us look very good. Almost all my “Catholic” guys (Pelosi, Biden, and me) are now firmly in the senior ranks of the Democratic Party, and responsible for its direction and policy. I’ve got to see if I can find something that will stick to the wall and that will cripple the Church’s teaching (and trump the U.S. bishops who keep contradicting us) by apparently making it impossible for a good Catholic to serve his country in any capacity.

  5. charleston catholic says:

    I respect Justice Scalia greatly, and I believe that Mr. Kmiec is (as usual) attempting to blur the issue.
    However, if Justice Scalia is being quoted here in the right context (which I question), he would be wrong in saying that the Constitution gives the Supreme Court no power over the issue of abortion. It’s right there in the Fourteenth Amendment (which, admittedly, has been used over the years by judges with dubious agendas):

    “nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

    If we truly believe that unborn children are human persons, this must apply, and the Federal judiciary would be fully within its rights to declare such a law unconstitutional.
    Therefore, as to Kmiec’s charge that Pope Benedict is somehow encouraging an “activist” judiciary, there would be nothing “activist” about a judge who decides whether or not any law (federal or state) protects the life of a person.

  6. Paul Haley says:

    Unfortunately for Kmiec, there is such a thing as the moral law which he conveniently ignores and the moral law, for all who call themselves catholic, supersedes the positive law. IMHO that is what the pope’s statement was based on, the moral law. And, in the case of laws which grant a right to abortion (killing of the innocent), the positive law conflicts with the moral law.

    Now, judges are responsible for applying the law, the moral law as well as the one written by the legislature, or the positive law. When Catholic jurists cannot make a decision based on the moral law conflicting with the positive law, they should resign their office. With “friends like Kmiec”, the catholic church needs no enemies. To try and paint Scalia as one who disregards the moral law and concentrates only on the law written by the legislature is scandalous and borders on calumny.

  7. JP Borberg says:

    Am I missing something? When His Holiness stated that the jurists are enjoined “to WORK IN COOPERATION with all men and women of good will in creating a just system of laws capable of protecting human life at all stages of its development”, doesn’t that allow an interpretation along the lines of ‘do what you can to support the Church’s teaching within the confines of whatever your job is’.

    If that is the case, I fain to see how Kmiec’s argument holds.

  8. Mitch_WA says:

    If a law was past to ensure a legal right to abortion even a catholic on the Supreme court should vote to uphold it if it is constitutional. However this Catholic judge should be looking for ways to rule that it is unconstitutional. Either that or resign.

    The reason that he should do this is because (to paraphrase from a Man for all seasons) If one is to cut down all of the laws to get at the devil, what will you do when all the laws are gone and the devil turns around, could you stand against him then? You need to give everyone, even evil the benefit of the law, if judges just change the law whenever they want law becomes meaningless over time, and then what do we have to protect us from chaos. We should seek to change laws by appropriate means not by judicial fiat, because that would destroy the law over time.

    just my 2cents

  9. mpm says:

    “Might there be a different, less intrusive course for the Church?
    [Doug to the recuse!]”

    Fr. Z,
    Excellent observation, but you’ve got a typo there I think.
    “rescue” or “recuse”? I wish he would recuse himself, on the grounds
    that he hasn’t got a case!

  10. Massachusetts Catholic says:

    Ambassador to the Holy See? I imagine he would get the same sort of welcome as Nancy Pelosi received.

  11. Ray from MN says:

    Kmiec probably is aware that his appointment as an ambassador to the Vatican would not be acceptable to the Vatican. So now, he is probably angling for a Supreme Court seat.

  12. Ted Krasnicki says:

    “But imposing moral duties on Catholic jurists that are incompatible with their envisioned judicial role in a democracy…”
    Many, such as Winston Churchill, have pointed out that democracy the way we know it is a necessary evil although still better than the alternatives. The problem is that democracy tends towards mob rule as both Plato and Aristotle observed. Divine Law is essentially above any man made laws and should be regarded as so by the state. Do not the SSPX also have an issue with the idea of religious freedom and the state in this context? It seems that Mr. Kmiec has centered on a major difficulty if not incompatibilty between Catholicism and the American way that has been a source of anti-Catholicism in America for a long time: “The Irish need not apply” because they were papists, and therefore considered a threat to American liberty and democracy.

  13. LCB says:

    To paraphrase Tucker Carlson on Doug Kmiec, “I’ve read suicide notes that are less passive-aggressive then this.”

  14. Fabrizio says:

    Kmiec probably is aware that his appointment as an ambassador to the Vatican would not be acceptable to the Vatican. So now, he is probably angling for a Supreme Court seat.

    Ray,

    I had the same exact impression upon reading this new product of Kmiec’s intellectual dishonesty

  15. MVH says:

    Dear. Fr. Z:

    It does seem that Prof. Kmiec is pitching for an ambassadorship to the Vatican. Beginning with his slick book and the consequent interviews he’s given since the election of Obama, he really thinks he and his views will be acceptable to the Holy See.

    I hope that if an ambassadorship falls through, he doesn’t pitch for a place on the SCOTUS like one of the above posters has written. Especially if Kmiec keeps in his obstinacy. Oh well, if the pro-life battle is lost as he says, then pro-lifers must take advantage of self-promoting opportunities.

    Sadly, from Kmiec’s shameful overlooking of Obama’s anti-life positions, it\’s clear who his messiah is, and his name ain’t Y’shua.

  16. Prof. Kmeic has gone right overboard. I know why, and how, and even at which point of the ship, but I can’t explain it now. I’m exhausted.

  17. btb says:

    Call me ignorant of the niceties of political theory but it would seem arbitrary for Kmiec and perhaps Scalia to say that it is inappropriate to “impos(e) moral duties on Catholic jurists that are incompatible with their envisioned judicial role in a democracy,” and yet not also be forced to agree that it would be inappropriate to expect Divine Law-derived moral conduct from a genocidal ruler of a totalitarian regime. If our Constitution is not ultimately based upon Divine Law, however stumblingly we work towards it, we have built our house on sand.

  18. Comment by Ray from MN — 21 February 2009 @ 3:30 pm
    “Kmiec probably is aware that his appointment as an ambassador to the Vatican would not be acceptable to the Vatican. So now, he is probably angling for a Supreme Court seat.”

    Yes Ray
    but to have him humiliated by being refused and the embarrassment that it would cause the Omessiah would be priceless

  19. This is old news and nothing new. I thought Kemic was a Catholic lawyer, interested in what the Church has to say. Under the last Pope many similar statements came from the Vatican with regard to judges and lawyers with regard to divorce and other elements of the natural law. Scalia is very much against this, and was honest enough to admit that his philosophy would also allow him to rule in favor of assisted suicide if it was passed by a state like Oregon and abortion. I would hope that Scalia would resign before participating in these crimes, but I honestly doubt it. He is a legal positivist convinced that he is protected by the limits of his function as a judge, understood by his unique and much in the minority understanding of American legal theory. Of course this is the same reasoning used by pro-choice Catholic politicians and by that bishop of unhappy memory Cushing of Boston, who insisted that it was the job of legislators to represent their constituents and not the Church. Therefore if their constituents are pro-choice (Cushing used the specific example of contraception in MA) the legislator should vote that way. This is also where the hypocrisy of many “conservative” Catholics becomes obvious to all of good will. For example if a judge ruled against abortion and in favor of life while setting aside some immoral law, they would be in an outrage. Or if Congress passed a law banning abortion thereby negating existing state legislation in favor of abortion, they would cry about the violation of state rights. Moral law (abortion) trumps positive law (states rights, limits of judicial power), unfortunately some Catholic refuse to recognize that fact. Scalia and Pelosi share the same principle which allows them both to ignore the Church’s teaching. Their function as judge or legislator is limited (one by positive law, one by the will of their constituents) and the Church can play no role. I believe Scalia sincerely believes this, but as for Pelosi, I think she is pro-abortion to the core.

  20. meg says:

    Couldn’t Pope Benedict, by using the term “jurist”, be referring to Kmiec himself, since Kmiec is in fact a jurist? That might explain why Kmiec is throwing up the smoke screen, to take the attention off himself. Wasn’t it Doug Kmiec who said if the Pope told him working for Obama was wrong he would accept such a pronouncement and mend his ways?

  21. Patrick says:

    Does Kmiec rhyme with shmuck?

  22. Patrick says:

    Sorry. I mean schmuck. My Yiddish is rusty.

  23. Tom says:

    Scalia’s position is correct, and has nothing to do with legal positivism. It is simply a reflection of the role of a supreme court justice in the American system, which is simply to rule whether laws enacted by Congress in the context of particular cases before the court are consonant with the Constitution or not. This role does not allow for injection of the justices’ personal moral philosophies, including “natural law” philosophy. The proper use of natural law belongs, in our system, with the legislature. A supreme court justice is not supposed to be deciding cases based on natural law, but only on the narrow question of a particular law’s compliance with the dictates of the constitution.

    Thus, the question in Roe v. Wade, “is Texas’ abortion law constitutional,” is properly answered “yes,” because there is in the Constitution no “right to privacy” which emcompasses abortion. A justice properly rejects abortion not because it violates natural law, but because the constitution does not contain any provision allowing for invalidation of state abortion bans.

    By the same token, the federal constitution does not prevent a state from enacting an abortion law allowing for abortion, and a supreme court justice would be acting improperly and exceeding his authority to rule that “natural law” forbids a state from passing an abortion law. Natural law does indeed forbid abortion, but the constitution is silent on the question, and a Catholic jurist, who swears an oath to maintain the constitution, may only lawfully answer constitutional questions, not natural law questions… those are properly considered, in our federal system, by law makers, not judges.

    That’s a long way of saying that Pelosi is responsible for abortion legislation, Scalia is not.

  24. rljfp says:

    My 2 cents worth,
    This past week I read in the newspaper about a gentleman in Oklahoma. He had a sign in his car that said abort Obama. A short time later he was arrested by the local law enforcement and the Secret Service raided his house. Someone in the article made the observation that if to local and federal law enforcement the word “abort” was used as a death threat or to meant murder then the U.S. government has officially recognized that abortion is indeed taking a life by arresting this gentleman. What do you think Mr Kmiec will make out of that?

  25. btb says:

    Tom, although your point is well taken it offers scant solace to the innocents suffering under a broken system of radical egalitarianism. Scalia’s Originalist position, though perhaps consistent, does not lead or inspire, particularly when the barbarians of relativism have stormed the gates. It would seem that God has given Scalia his gifts and placed him in his position to be more Catholic than automaton. What’s the solution to being subject to the whims of a deranged populace in a republic/democracy? If one takes Scalia’s position perhaps it’s grimace and bear it. Or hope for a miraculous conversion of the masses who will then elect God-fearing legislators. Maybe. But perhaps we should instead reconsider Pope Pius XI’s encyclical letter Quas primis and how we might most effectively move towards establishing the Social Kingship of Christ in the context of the US system. How that would come about, though, is neither trivial nor Originalist.

  26. Chuck Shunk says:

    Coming in a bit late to this discussion, but I’d like to point out that everyone here seems to have missed a glaring problem with Kmiec’s argument. Kmiec argues that Scalia is inconsistent in saying he can in good conscience vote that a pro-abortion law is constitutional, but that he would have to resign if the Church taught that the death penalty were immoral.

    What Kmiec misses here is that a Judge’s job is twofold. A judge has the responsibility to:

    1) Interpret the law, the content of which (in a governmental system such as in the US where the legislative and executive branches are separate) is determined by another.

    2) Assign an appropriate *penalty* for infractions of the law.

    Carrying out the first responsibility can be an exercise of pure intellectual judgment (according to an originalist interpretation anyway). So a Catholic judge could say “yes, this law is not in conflict with the Constitution” even if the law were a bad law, and not be culpable of sin if the statement itself were actually true. Leaving aside the question for now of whether pro-abortion laws are in fact in conflict with the Constitution, it is quite possible for a law to be a bad law and not to be in conflict with other laws that are good (such as the Constitution).

    Carrying out the second responsibility, however, necessarily involves prudential judgment based on the particulars a case, and here the power of decision is invested in the judge and not in the lawmaker. So a judge cannot escape being morally involved in the penalty phase of the outcome of a trial: If a judge assigns a penalty that is per-se immoral, he is guilty if an immoral act. So Scalia is quite right here, in my opinion, and Kmiec misses the actual distinction: Abortion laws and death *penalty* laws place different moral demands on judges because in the case of abortion laws, it is the legislature who is deciding on an issue of life and death, whereas in a death penalty, it is the judge who is deciding between life and death.

  27. RBrown says:

    Reading the Kmiec comments, I felt as if I was watching a medicine show (BTW, has anyone ever seen “The Flim Flam Man” with George C Scott–excellent). What he’s of course trying to show is that morally, there is no difference between his and Scalia’s positions.

    1. K well knows that the availability of abortion in the US is the consequence of a SCOTUS decision.

    2. He also knows that no change will occur unless Roe v Wade is overturned–also a SCOTUS decision.

    3. But Kmiec well knows that Pelosi’s party, which he supported in the Presidential election, has an official pro abortion policy manifested in a pro Roe litmus test for SCOTUS nominees.

    4. In his comments defending his decision to back Obama, Kmiec noted that McCain did not back a Constitutional Amendment banning abortion. If he doesn’t understand that backing such an amendment is little else than an empty political gesture, then he’s been deluded by his own dissimulation.

    Kmiec is merely doing what lawyers are trained to do: They construct rhetorical arguments that are intended to manipulate rather than convince.

  28. RBrown says:

    Scalia’s Originalist position, though perhaps consistent, does not lead or inspire, particularly when the barbarians of relativism have stormed the gates.

    It is not the job of judges to lead or inspire. Their job is to adjudicate according to the law.

    It would seem that God has given Scalia his gifts and placed him in is position to be more Catholic than automaton. What’s the solution to being subject to the whims of a deranged populace in a republic/democracy?

    You make a good point. The Bill of Rights is intended to protect the individual against a tyrannical majority.

    If one takes Scalia’s position perhaps it’s grimace and bear it. Or hope for a miraculous conversion of the masses who will then elect God-fearing legislators. Maybe. But perhaps we should instead reconsider Pope Pius XI’s encyclical letter Quas primis and how we might most effectively move towards establishing the Social Kingship of Christ in the context of the US system. How that would come about, though, is neither trivial nor Originalist.
    Comment by btb

    One component of the Social Kingship with Christ is government officials not exceeding their legal authority.

  29. RBrown says:

    Abortion laws and death penalty laws place different moral demands on judges because in the case of abortion laws, it is the legislature who is deciding on an issue of life and death, whereas in a death penalty, it is the judge who is deciding between life and death.
    Comment by Chuck Shunk

    The legislature doesn’t decide on abortion. That right was taken away by Roe v Wade.

  30. Dear Fr. Zuhlsdorf, dear all,

    I’ll have a broader treatment of what’s wrong with Prof. Kmeic’s piece up at mine by tomorrow mid-day Rome-time.

    For the moment, let me only say that at this stage of its development, Prof. Kmeic is not trying to equate his position with the originalists on SCOTUS or in the Federal judiciary, generally (as some folks have suggested and even argued on this thread).

    Rather Prof. Kmeic is trying to show that Scalia’s articulate understanding of judicial restraint, which is a concommitant of, but by no means identifiable with or reducible to what I will call “Scalian Originalism”, does not shield Justice Scalia or those of his ilk from the implicit opprobrium of pro-abort politicians’ voting records, advocacy, etc., to be found in the Statement from the Holy See following Speaker Pelosi’s visit.

    This is the first step in what appears to me to be a rather ham-fisted attempt on the part of Prof. Kmeic to do two things: shift the focus of moral outrage onto Scalia &co.; set himself up as the one with the morally coherent position – after all, he never personally supported a single pro-abortion policy, and maintains he voted for the President despite the then-candidate’s opinions and stated legislative and policy aims.

    More later… I’m on air in a few minutes.

  31. Mr. Brown,

    I think you have a problem because the Church and Scalia have a different idea of what the job of a judge is. Just as the Church and Pelosi have a different idea about what the job of a legislator is. If the Church has the right to say what the job of a Catholic legislator is, and to condemn a misunderstanding of that job, then the Church also has the right to say what the job of a Catholic judge is. Ms. Pelosi and her “Catholic” ilk maintain that their role as legislators in a democracy is to represent the views of the people and not their Church. The Church has rightly spoken against this position. Scalia maintains that his role as a judge in the American republic is to adjudicate according to the positive law only. The Church has also spoken against this position, and insisted that judges must take into account the entire law including the moral law. Scalia instead of being docile to the Church’s understanding of the law, insists that if the Church becomes clear about this (I believe the Church already has) he will resign, rather than act in a what the Church deems a Catholic fashion. Obviously, this position is better than Pelosi’s, who instead deifies the Church, but it is only slightly better.

    Finally, I hope the Church becomes clearer on this for the sake of Catholic judges. According to Scalia and many “conservative” Catholics they are of the perverted opinion that a Catholic judge could participate in a case that directly lead to the murder of an unborn child (or in the case of euthanasia an adult), and some how they would not be accountable. This is insane.

  32. meg says:

    Wikipedia: In most of Continental Europe any person who possesses a degree in law is called a jurist.

    In the Pope’s eyes, Kmiec is a jurist.

  33. P says:

    For once, at least, Kmiec is correct. “Originalism” is morally bankrupt and a species of liberalism. All Christians have an obligation to act according to justice at all times. All laws, of all nations, are subject to the eternal law.

    Some people here are quoting the 14th amendment, saying, “See! Abortion is against the Constitution!” So what if it wasn’t? What about Catholics in China? Or Russia? Or the vast, vast majority of nations throughout history whose laws were manifestly incompatible with justice on this or other matters? What about Catholics who will live during the reign of Antichrist?

    Should they just say, “Well, I’m a judge, and the law is the law”? Should they resign, as Justice Scalia suggests? Or should they fight for the Kingship of Christ?

    Abortion is illegal in this and every nation. Not “should be illegal” – IS illegal. Already illegal. Always has been. Always will be. Forever and everywhere. All Christians, in all nations, have the duty to act accordingly.

    If Kmiec wanted to quote St. Thomas, he should have picked a simpler quote:

    “Lex malla, lex nulla”

    Or to quote a different St. Thomas:

    “The King’s good servant – but God’s first.”

  34. TJM says:

    I think people are mistaking what Originalism is all about. Keep in mind that the US Constitution was formulated to constrict the reach of the federal government. Originalism would have kept federal courts out of the abortion debate because when our nation was founded, our founding fathers would have been horrified, absolutely horrified, that the federal government would have interjected itself into a matter which was clearly in the province of the individual state’s police power to regulate. This “living” Constitution nonsense was concocted and has been routinely used by liberal politicians and jurists to achieve through the courts what they cannot achieve at the ballot box. Example par excellence is GAY Marriage. Tom

  35. Seems like some “sophisticated setup” to claim the Church has changed it’s teachings for how those within the law field of a society must act morally. Setting up false dichotomies – “draws no distinction between the moral duties of Catholic policymakers and Catholic judges to work against abortion” – for getting his clever argument across.

  36. Tom,

    I think you misunderstand where some of us are coming from. I personally do not give a fig about what our founding fathers would be horrified by (although I think Hamilton would be quite pleased). The federal government has every right to ensure that the citizens of the nation are protected, and if the states refuse to do it, then the federal government has to step in. Division of powers is not a revealed truth, and does not trump the obligation of a nation to protect its citizens. Finally, you seem to imply that the “state’s police power” has the right to regulate abortion. They do not. They have the obligation to protect the unborn. You also demonstrate the hypocrisy of the conservative Catholic movement. You scream about how abortion is the only issue to consider when voting, but when push comes to shove, you are just as willing to sacrifice the unborn at the altar of a bankrupt anti-Catholic political philosophy of government.

  37. TJM says:

    Christopher Sarsfield, before you go popping off, abortion was illegal in all original 13 states. It was regulated by the police power of the state. It was a crime to procure or assist in an abortion. Do you even know what the term “police power of the state” means in the legal sense? Moreover, your faith in the federal government is really misplaced. Immediately prior to the US Supreme Court decision in Roe v Wade abortion was illegal or severely restricted in the vast majority of states. Only liberal states allowed abortion. Guess which party controlled most of those states? Also, talk about screaming, you seem to be leaping to a lot of conclusions about my positions on other matters of consequence. I was only speaking to the issue of originalism in the Constitution and how the unborn would have been better off with that judicial philosophy instead of the living constitution philosophy (how ironic the term, living constitution used to kill the unborn) pushed by liberal judges. Should I assume that your wild diatribe means you’re feeling guilty about a recent vote you cast?

  38. TJM,

    You know what they say about when you assume, so I would be careful if I were you. Read what I said above about Pelosi. I am a Catholic. I have not sold my soul to any party or political philosophy, ie I did not vote for any Democrat in the last election. My point was and is that Scalia’s and your position, when viewed from the eyes of the faith is perverse. Yes, liberal judicial activism is a curse and plague. Yes, Scalia’s position would be better in the practical order. However, that does not make it any less anti-Catholic. Any judge that follows Scalia’s judicial philosophy is on the wide path to hell. Let us say a judge who is following the positive law finds that a minor girl can kill her baby against the wishes of her parents. Are you willing to be so audacious as to defend a judge who ruling according to the law allows the murder of another? In the example given such a ruling would result in the automatic excommunication of the judge involved. Have you even read a single book written on legal theory by a Catholic from a specifically Catholic perspective? Are you saying that the Church can judge the morality of the actions of a legislator or nurse or doctor, but the Church can not instruct judges?

  39. Jason Petty says:

    Kmiec doesn’t want to be Ambassador to the Holy See as much as he wants a slot on the Supreme Court. He’s just a good doggie showing Obama all the tricks he can perform right now.

    I for one cannot wait to watch him play dead.

  40. TJM says:

    Christopher Sarsfield,

    I think we are talking past each other trying to get to the same place. In my view of originalism, Roe v Wade would be overturned in a New York minute because there is absolutely NO authorization in the US Constitution for this decision which was made up by judicial activists who believe in the living constitution.

    Now let’s have fun. Let’s say I were appointed a Supreme Court justice for a day and I was the swing vote to decide whether to over-turn this decision.
    I could argue for over-turning it on the basis of originalism or I could say, well since you guys love activist judges who make things up, I am going to be activist
    and reverse this case.

    By the way, I think Scalia’s argument doesn’t hold water either. For a guy who claims to be an originalist he’s not acting like one

    Tom

  41. RBrown says:

    I think you have a problem because the Church and Scalia have a different idea of what the job of a judge is.

    The Apostolic Signatura and Roman Rota–and for that matter, diocesan tribunals, adjudicate according to the law of the Church. Civil courts, incl SCOTUS, state Supreme Courts, local, and appellate courts, adjudicate according the laws of the US.

    Now please tell me what the difference is between the two.

    Just as the Church and Pelosi have a different idea about what the job of a legislator is. If the Church has the right to say what the job of a Catholic legislator is, and to condemn a misunderstanding of that job, then the Church also has the right to say what the job of a Catholic judge is.

    The Church only has the right to say what the job of a legislator is according to the laws of each country. For example, the Church has no right to say that treaties and federal judges should be approved by all of Congress when that power is given to the Senate. Likewise, the Church has no right to say that the Speaker of the House shall be the Commander in Chief. Nor can the Church say that all revenue bills must originate in the Senate rather than the House.

    The difference between the Church and Pelosi isn’t over the duties of a legislator but rather over whether the legislature should promote abortion. She thinks it should promote it by providing funding and installing pro Roe judges (although the House has no say over fed judges).

    Ms. Pelosi and her “Catholic” ilk maintain that their role as legislators in a democracy is to represent the views of the people and not their Church.

    IMHO, most Congressmen think that they should vote the will of the people they represent unless it conflicts with their conscience. In the matter of Pelosi, there is no conflict between the two.

    The Church has rightly spoken against this position. Scalia maintains that his role as a judge in the American republic is to adjudicate according to the positive law only.

    You seem to assume that Scalia has some say over abortion. His position is very simple: He does not have the authority to decide such a matter. If you are maintaining that the Church says otherwise, that judges are quasi legislators, then I think you are mistaken.

    The Church has also spoken against this position, and insisted that judges must take into account the entire law including the moral law. Scalia instead of being docile to the Church’s understanding of the law, insists that if the Church becomes clear about this (I believe the Church already has) he will resign, rather than act in a what the Church deems a Catholic fashion. Obviously, this position is better than Pelosi’s, who instead deifies the Church, but it is only slightly better.

    Nonsense. Scalia is opposed to abortion, but thinks that he does not have the authority to end it, only to refer the matter to each state. On the other hand, Pelosi is active providing abortions.

    Also: You seem to assume that positive law and natural law are mutually exclusive. In fact, we have laws against murder and theft, which are both positive and participate the natural law.

    I also refer you to the article in the Summa where St Thomas asks whether a judge may morally sentence a convicted man that he knows is innocent. St Thomas answers in the affirmative.

  42. RBrown says:

    I think you misunderstand where some of us are coming from. I personally do not give a fig about what our founding fathers would be horrified by (although I think Hamilton would be quite pleased). The federal government has every right to ensure that the citizens of the nation are protected, and if the states refuse to do it, then the federal government has to step in. Division of powers is not a revealed truth, and does not trump the obligation of a nation to protect its citizens.

    You’re right that division of powers is not revealed Truth, but revealed Truth does not contradict division of powers. There is nothing against revealed Truth that says that one branch or another must decide the abortion question.

    Finally, you seem to imply that the “state’s police power” has the right to regulate abortion. They do not. They have the obligation to protect the unborn. You also demonstrate the hypocrisy of the conservative Catholic movement. You scream about how abortion is the only issue to consider when voting, but when push comes to shove, you are just as willing to sacrifice the unborn at the altar of a bankrupt anti-Catholic political philosophy of government.
    Comment by Christopher Sarsfield

    They have the moral obligation. Unfortunately, this is one of those cases where juridical obligation contradicts moral obligation, something not unheard of in the Church.

    You seem to be confusing moral right with juridical right.

    Pope Paul VI had the juridical right to suppress the 1962 Missal. Whether he had the moral right is another question.

  43. Corleone says:

    Yeah, I sincerely feel Scalia missed the boat here. Whether or not a “foetus” is considered a legal person under the current US law, the constitution clearly states that no one is to be subject to cruel and unusual punishment. Having limbs torn off then sucked out through a vaccuum is as cruel and unusual as it gets. And to back the point up further, the consitutionn absolutely guarantees the right of all citizens to life, liberty and the pursuit of happiness. So, along that train of thought, one could argue that barring a direct intercession from a medical procedure, this individual would indeed become a citizen, and thus be guaranteed all of the aforementioned. And to intervere with that natural process is to take this right and liberties away.

    Then again, Scalia isn’t really Italian (he’s Albanian) so we can’t hold this lack of higher reasoning against him.

  44. RBrown says:

    Having limbs torn off then sucked out through a vaccuum is as cruel and unusual as it gets. And to back the point up further, the consitutionn absolutely guarantees the right of all citizens to life, liberty and the pursuit of happiness. So, along that train of thought, one could argue that barring a direct intercession from a medical procedure, this individual would indeed become a citizen, and thus be guaranteed all of the aforementioned. And to intervere with that natural process is to take this right and liberties away.

    Then again, Scalia isn’t really Italian (he’s Albanian) so we can’t hold this lack of higher reasoning against him.
    Comment by Corleone

    Scalia’s father was born in Sicily (I don’t know whether his parents were from Albania). His mother was the daughter of Italian immigrants.

    Mother Teresa was from Albania.

    The phrase “life, liberty, and the pursuit of happiness” is not from the Constitution but rather the Declaration of Independence, which is not a legal document.

    The 5th and 14th Amendments of the Constitution prohibit depriving someone of life, liberty, and property without due process. There is not, however, consistency in US law about abortion. The Unborn have inheritance rights, and the murderer of an expectant mother can be charged with double homicide (Scott Peterson).

  45. Corleone says:

    Any Italian knows Scalia is Arberesh/Albanian on both sides of his family.

    Mother Theresa was NOT born in Albania; she is also ethnic Albanian born in what was then Iugoslavia and now Macedonia.