Tuesday, May 01, 2007

Catholic Judges Don't Take Long To Be Inconsistent

While the "Catholic bloc" stood together on the partial birth abortion case, it did not take long for this alliance to be pulled asunder. As noted by Eduardo Penalver, all but Kennedy voted the wrong way in a sequence of three death penalty-related cases. Of course, as some also argued in the context of the Hamden case (pertaining to the applicability of the Geneva Conventions), the voting was purely based on a procedural point of law. This is the position adopted by Rick Garnett, Panalver's Mirror of Justice colleague, who notes that there is no "authoritative church teaching involved in what amounts to a "question whether a federal judge reviewing a state court's denial, on procedural grounds in state postconviction proceedings, of a death-row inmate's ... claim is required to vote to reverse that denial".

But as I noted before, Church teaching pertaining to the death penalty is not mere "prudential judgment" that can be blithely dismissed. While the Church does not teach that the death penalty is always and everywhere wrong (like abortion), its moral licitness depends on the intent and circumstance. In other words, we are talking about principles governing circumstances rather than judgements about particular circumstantial facts. Here, the Church does carve out conditions under the death penalty may and may not be immoral, namely, that there must be no other way to defend society.

How does this relate to the judiciary? Penalver makes the following point:

"Given the immorality of the death penalty in all but exceptional cases (what I take to be the authoritative teaching of the Church) and given an American death penalty that goes substantially beyond what the Church would allow, it seems to me that Catholic Justices are under at least some moral obligations with respect to the death penalty."
That sounds about right. Frankly, I fail to understand how the kind of legal "originalism" so favored by conservative judges can be compatible with a Catholic approach to the law. Its focus on text rather than the natural law is surely inspired by Protestantism. For Catholics, the natural law must transcend all positive law. I am not encouraged when I hear judges speaking out against Roe v. Wade simply because it created a far broader right to "privacy" than was ever intended. This is undoubtedly true, but not relevant. They should oppose abortion because it is wrong, and no positive law can make it right. What if the original constitution had included a specific right to abortion? It would still be wrong, despite the original intent. The same holds true for the death penalty. In cases pertaining to the God-given human rights and dignity of the person, appealing to legal procedural niceties simply will not cut it. There are moral issues involved, at least as important (if not moreso) than the vote of a legislator.

And, as we have seen with the recent death penalty cases, the Catholic justices did not take long before they started deciding as non-Catholics...

8 comments:

Anonymous said...

They should oppose abortion because it is wrong, and no positive law can make it right."

Strange words coming from a "pro-abort" as you're consistently called by another poster here.

Antonio Manetti said...

[Catholic justices] should oppose abortion because it is wrong, and no positive law can make it right.

Such judicial behavior would be dangerous. If Catholic justices should interpret the law according to Catholic doctrine, why shouldn't justices of other religious persuasions (or none at all) be accorded the same discretion?

While a justice may certainly oppose abortion as a matter of private morality, that morality must be set aside in her exercise of office.

If a justice is unable, in good conscience, to perform her duties in accordance with the mandates of the law, she should either resign or recuse herself.

Morning's Minion said...

Calling those of us who hold our noses at the stench of Republican policies "pro abortion" is a common tactic. It makes us look bad, and enables the right to gloss over all other other stuff. Unfortunately for them, it's not true.

Morning's Minion said...

Antonio,

I do not believe Catholic justices should interpret the law according to Catholic doctrine, I think they should do so according to the natural law that is written in the hearts and minds of every rational human being. In particular, they should always protect human life and human dignity. Note that they should not be in the business of promoting personal virtue or controling vice, but should stick to protecting the common good.

Antonio Manetti said...

I do not believe Catholic justices should interpret the law according to Catholic doctrine, I think they should do so according to the natural law that is written in the hearts and minds of every rational human being.

Short of conferring some sort of judicial infallibility on members of the court, exactly what assurance would we have that a justice's perception of the natural law is "correct"? Who is to make such a judgement, the magisteria?

More to the point, the assertion that such a natural law exists and is the same for each and every human being is itself an article of Catholic doctrine to which not all subscribe.

Franklin Jennings said...

I've never once called Minion a pro-abort and I'll give a two dollar bill to the first person who can provide a quote to the contrary.

Don't know nothin' 'bout flies nor readin' I see.

Franklin Jennings said...

Morning's Minion,

In light of your repeated attempts to link me with the Republican party (which makes your earlier objection to infantile insults seem very hypocritical indeed) I'll wager you 5.00 USD that for any policy issue you care to name, excluding healthcare, your position will be closer to the Republican position than my own.

On healthcare both parties actually differ widely (how rare a thing it is!), and so I split the difference, agreeing with republicans that government should not be in the business of administering healthcare at any level, but also insisting that no american should pay a dime for any healthcare, medicine, medical aid etc. These things should be funded entirely from confiscatory taxes imposed on corporations operating within our borders, redistributed to the people as vouchers for health insurance. If they are going to enslave us, they can at least pay to keep up our health.

If you don't like wagering, I'd still love to carry this out as a mere thought experiment. I'm quite confident I'm not someone who can fairly be confused with a republican. Are you equally confident?

If you want we can do it privately at jennin23@gpc.edu. I wouldn't blame you for not risking it in full view of the public.

paul zummo said...

I'm sorry, but the Constitution does not forbid the use of the death penalty (nor does the Magisterium). I'm personally opposed to the death penalty myself, but if on the Court, I would rule as these judges have simply because it is what is legally mandated.

The US Constitution is very specific document that lists and limits the powers of the federal government.

[Originalism's] focus on text rather than the natural law is surely inspired by Protestantism.

Hogwash. It's based on the idea that if you consistently change the Constitution by any means other than the amendment process, you're not really living under a Constitution. Morality based judical decision making, even it happens to be based on morality we approve of, is inappropriate.

Look at Roe. For all of the vapid argumentation about how we shouldn't impose our morality on others, seven Justices of the Suopreme Court, in essence, did just that with Roe. There was absolutely no constitutional justification for their actions, but they desired to implement a policy they deemed appropriate. To turn the tables and say that Catholics or any other group can do the same would have our constitution sway to the whims of whatever happens to be the majority religious view on the court, so for once I have to agree with Antonio: If Catholic justices should interpret the law according to Catholic doctrine, why shouldn't justices of other religious persuasions (or none at all) be accorded the same discretion?

Your counter about the "natural law trhat's written in their hearts" doesn't cut it because something tells me that when atheists are listening to the natural law within their hearts, they're hearing something else.

We should protect the common good, but the main way to do that is by upholding the actual meaning of the Constitution so that is not changed merely by the whims of a few justices. It does, unfortunately, mean we have to live with the constitutional sanction of things that we do not like. If you think the DP should be banned, then amend the Constitution, because otherwise you're stuck with it.