Catholic Judges, the U.S. Constitution and Natural Law Interview With
Pepperdine's Douglas Kmiec
MALIBU, California, AUG. 29, 2005 (Zenit.org).- The nomination of Judge
John Roberts, a Catholic, to the U.S. Supreme Court has turned the
spotlight on the question of the interplay between religion and the
law.
Douglas Kmiec, the Caruso Family chair and professor of constitutional
law at Pepperdine University of Law and co-author of "The American
Constitutional Order: History, Cases and Philosophy" (LexisNexis),
shared with ZENIT the appropriateness of the U.S. bishops' involvement
in the confirmation process, as well as the importance of the natural
law tradition for prospective Supreme Court justices.
Q: Right now there are three, and there could be four, Catholics
sitting on the Supreme Court. However, they often have diverging views
on some important issues. Is there a Catholic way of interpreting the
U.S. Constitution, or can there be legitimate disagreement about the
meaning of the text?
Kmiec: The tools of constitutional interpretation are the text, history
and structure of the American Constitution. Part of that history
includes the Declaration of Independence and its reference to selfevident truths of creation, created equality and unalienable rights.
As Lincoln reflected, the Constitution was framed for the philosophy of
the Declaration, not the other way around. It is to secure our
unalienable rights that "governments are instituted." All those who
would seek judicial office should sincerely appreciate the intrinsic
value of the human person reflected in the Declaration.
Moreover, one would expect, and I do, that those who are truly
sustained by the Catholic faith and a Catholic family, and perhaps
educated in Catholic schools, would have a special appreciation by
study of the natural law tradition and its direct contribution to the
American order of these first principles.
As to divergence among believers, in law or anything else, that is part
of the human condition. In truth, Justices Antonin Scalia, Clarence
Thomas and Anthony Kennedy - the three Catholics presently on the
Supreme Court -- have a statistically high level of agreement in
matters of legal interpretation, though each has had different legal
training and experience, and that, rather than their common faith,
likely explains the variations among them.
Q: Recently, Bishop William Skylstad, president of the U.S. Conference
of Catholic Bishops, sent a letter to President Bush calling for a
Supreme Court justice that would rule in a number of ways consistent
with the bishops' public policy agenda. What would be the
jurisprudential consequences for a Catholic justice who heeded Bishop
Skylstad's call?
Kmiec: Bishop Skylstad's letter was a direct and entirely appropriate
expression of Catholic faith. The letter might be perceived as somewhat
misunderstanding the intended role of the Supreme Court, but one can
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hardly fault the bishop for this since some members of Congress,
themselves, wrongly think of judges as policy-makers.
As a matter of original understanding, nothing in the Constitution is
at odds with any of the policies the bishop urges. For example, while
the Constitution provides for capital punishment, there is nothing
precluding the American people in their respective states to end or
limit its application if the people come to be persuaded by the witness
and prayer and instruction of Catholics -- and others -- in the public
square that, as John Paul II taught in "The Gospel of Life," its
application should be rare.
Q: What role should a judge's faith and moral beliefs play in his or
her role as a nonpartisan adjudicator?
Kmiec: The Constitution puts religious belief off-limits for selection
or qualification. It states in Article VI: "No religious Test shall
ever be required as a Qualification to any Office or public Trust under
the United States." Religious belief is necessarily off-limits in
adjudication.
Q: Can a Catholic judge in good conscience strike down laws restricting
abortion that he or she believes are unconstitutional? What about
applying unjust laws? What should a judge do in the case of a moral
conflict?
Kmiec: As a matter of formal logic, it must be readily admitted that no
person in or out of office can set himself or herself above the divine
law. Yet, repeatedly and circumspectly, the Church's teaching is
directed at "elected officials" or those casting "a legislative vote."
So neither John Kerry nor Ted Kennedy, for example, should feign
surprise when they are called upon by the Church to use their
persuasive gifts to legislatively reduce the incidence of abortion, and
certainly not to be its propagandists.
So, too, it was entirely appropriate for Bishop Skylstad to write
President Bush, an elected official, to urge policies that coincide
with not only Catholic belief, but also -- when one examines the
policies discussed in his letter -- truly universal manifestations of
love of neighbor.
Nowhere, however, does the Church formally instruct judges to act
outside the bounds of their judicial office to legislate from the
bench. The Church exhibits great respect for the separation of powers,
even as the justices themselves have been less than faithfully
observant of this constitutional building-block.
Here, the Church is following in 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."
Of course, for over 30 years there has been great displeasure over Roe
v. Wade for, among other reasons, its dishonoring of the democratic
choices of the people.
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So, while Church leaders are well within their rights as citizens to
point out in public statement or amicus brief how they believe that a
proper understanding of law does not support abortion on demand, a
Catholic judge may be part of a judicial system that includes Roe.
In ruling on such matters, a judge does not become morally complicit in
the underlying act or share in its intent. If the question is: Does
John Roberts have a specific Catholic duty on the bench to restrain
abortion? -- Justice Scalia has given the apt answer: "A judge ...
bears no moral guilt for the laws society has failed to enact."
In actuality, given its dubious legal origin, the advocates of abortion
on demand may be more concerned if the day is nearing when the Supreme
Court will return to the separation of powers and follow the law of the
Constitution as written -- an obligation binding upon all judges,
Catholic or not.
Q: What role should natural law play in the work of a judge? Where
should judges look for enduring principles to guide them in their
rulings?
Kmiec: Natural law is again directly referenced in the Declaration and
it is often reflected in common law jurisprudence at the state level
which can play an important role in federal constitutional adjudication
-- it is this common law that largely gives definition to terms such as
"property," and should largely be thought to fill out terms such as
"life" and "liberty" as well.
Thus, for a unanimous court in 1997 Chief Justice Rehnquist properly
rejected a claim that the court should recognize assisted suicide as a
protected constitutional liberty since "for over 700 years, the AngloAmerican common-law tradition has punished or otherwise disapproved of
both suicide and assisting suicide."
Beyond textually protected rights, Rehnquist wrote that only those
liberties that are "objectively, 'deeply rooted in this Nation's
history and tradition,' and 'implicit in the concept of ordered
liberty,' such that 'neither liberty nor justice would exist if they
were sacrificed," should have claim for judicial recognition -- and
then such recognition should be only at a level of generality that
exhibits "careful description."
Natural law arguments are best directed at those proposing or enacting
law, but to the extent that the court in rare cases is asked to go
beyond enacted text, then judicial interpretations ought not contradict
human nature itself, as did Roger Taney's tragic opinion in Dred Scott
v. Sanford in 1856, denying the humanity of slaves in complete
disregard of the more encompassing natural law language of the
Declaration that "all men are created equal."
Q: As the commentary on the Supreme Court begins to swell, what
resources should Catholics turn to regarding the meaning of the
American constitutional heritage and the appropriate modes of
constitutional interpretation?
Kmiec: The coverage of current Supreme Court development in the major
media is reasonably reliable in the short term, and I find that the
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Catholic News Service often supplies apt and timely commentary in
diocesan papers.
Catholic law schools also publish important scholarly legal journals,
such as the Notre Dame Journal of Law, Ethics & Public Policy, and the
American Journal of Jurisprudence, also from Notre Dame. The Catholic
University Law Review also has an online bibliography of Catholic legal
resources on the Catholic University of America Law School Web site.
Other schools, such as Villanova, Fordham and Ave Maria, also do
special issues and symposia on Catholic perspectives on the law.
Someone seriously interested in an in-depth study might examine my own
book compiling cases and history on the American Constitution from an
originalist and natural law perspective: "The American Constitutional
Order: History, Cases and Philosophy."
Finally, for the Internet-friendly, the Mirror of Justice blog also
includes a running, participatory discussion of constitutional
development from the Catholic view.
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