"And what does the LORD require of you But to do justice, to love kindness, and to walk humbly with your God"
-- Micah 6:8

"The duty of the prosecutor is to seek justice, not merely to convict."
-- American Bar Association Standard 3-1.2(c)

"There may be a legitimate diversity of opinion even among Catholics about waging war and applying the death penalty, but not however with regard to abortion and euthanasia."
--Pope Benedict XVI, June 2004

Monday, March 21, 2005

Unnatural Supreme Court

Some Catholics are apparently overjoyed that the Supreme Court has joined the Bishops' crusade against the Fifth Commandment as realized in the just and proportionate use of the death penalty. Deacon Fournier, a lawyer who dresses up to play priest on weekends, thinks the Supremes are finally getting on the Natural Law bandwagon in their decision negating state laws allowing for capital punishment of 16 to 18 year olds.

The argument that our country needs a “natural Law Jurisprudence” as Mr. Fournier termed it, is enticing to a Catholic. There is no question that our legal institutions should reflect, as a baseline, the dictates of the Natural Law as understood in the West for several millennia and as explicated and confirmed by the wisdom of the Church.

The difficulty arises in our Constitutional system as to where to locate that function of implementing the Natural Law. Congress is our lawmaker. They are solely responsible for drafting and enacting legislation. The Supreme Court’s mandate is not to make law, but only to decide whether laws which have been enacted are in conformity with the requirements of the Constitution.

Perhaps unlike in some other legal systems, American judges are essentially technicians, not philosophers, and imposing on them the responsibility to discern the Natural Law is like asking your local parish priest to conduct open-heart surgery. It is not an insult to the priest to recognize that surgery is not his line of work. Judges are good at applying the law to a set of facts in a case, or in putting a piece of legislation next to the Constitution and seeing if they conflict. They are not trained in law school to plumb the depths of the Natural Law; worse, life-appointed Justices are not accountable to anyone if their view of Natural Law turns out to be erroneous. It is therefore a dangerous idea to vest the safety of our institutions and traditions in the hands of lawyers who are not qualified academically or by temperment to be philosophers.

As long ago as 1947, before the culture wars stated, a Supreme Court Justice, Hugo Black, explained that a Natural Law approach would "appropriate for this Court a broad power which we are not authorized by the Constitution to exercise." (Adamson v. California).

Note that none of this is to say that Natural Law does not have a role in our legal system. It is only to suggest that judges are not the proper repositories of the myriad practical determinations as to what laws are consonant with Natural Law. It is understandable that one might like some of the philosophically based, non-Constitutional rulings of the Supreme Court (like Mr. Fournier apparently does). But it should be remembered that once we admit the principle that the Supreme Court can impose its particular view (or more correctly, the view of five prevailing Justices) as “law,” we should not complain when they discern a hitherto unknown “right of privacy” in the Constitution which negates the states’ laws against abortion and contraception (Roe v. Wade, Griswold v. Connecticut). Or when they determine that the interest in self-determination and privacy means that sodomy laws are unconstitutional (Lawrence v. Texas). Or when they decide in the near future, as it seems they might, that fundamental fairness and equality under the law require that states not prevent homosexuals from “marrying.”

The decision to prevent states from justly executing juveniles stems likewise from just such judicial inventiveness. No genuinely principled legal, Constitutional argument can be made that such laws are unconstitutional. The Court is simply imposing the personal philosophical views of the prevailing Justices upon the will of the citizens of the states. They are in short doing just what Mr. Fournier is advocating. He cannot decry Roe and praise Roper. They are cut of the same cloth and result from the same lawless disregarding of the Court’s traditionally limited role in our system.

The question for any person dedicated to the Natural Law, then, is how do we best advance just laws? As the examples cited above (abortion, contraception, sodomy, marriage, capital punishment) show, the people usually do support and enact just laws. It is the Court which overturns these just laws. Our experience has thus been that the people and their representatives are a surer custodian of Natural Law principles.

So we should reject Mr. Fournier’s call for a generation of Catholic jurists armed to discern the Natural Law and enforce it from the bench. Such judges would actually be violating their oaths and undermining our legitimate institutions by usurping functions assigned by our system elsewhere than the courts. It is comparable to urging police officers not just to enforce the laws as written, but to seek out and punish any wrongdoing they find, whether the conduct is legal or not. It might sound nice (to some) but it is a recipe for lawlessness cloaked with a veneer of righteousness. The Natural Law must be advanced, but not every public official must advance it if his job does not permit him to do so.

This is beneficial, since from a Catholic perspective, it is relatively easy to influence our state and national laws through the (admittedly flawed) mechanisms of representative democracy. It is extremely difficult, however, to change radical Supreme Court decisions—to amend the Constitution or to wait for death and sympathetic presidents to appoint Justices who might (or might not) right the prior wrongs of their predecessors.

In sum, in accordance with the well-known Catholic principle of subsidiarity, our system is designed to keep such important issues close to the people. This is accomplished by vesting the legislative power solely in elected representatives. It is there we must work to advance the Natural Law, not in hoping for enlightened lawyers on the Supreme Court.

1 comment:

The Stark Raving Viking said...

I found what you say in this post, interesting.

I posted a link to it in FreeSpeech.com

Blog on.

-Steven G. Erickson aka Vikingas