Saturday, March 14, 2009

Kmiec's Time Article on Benedict XVI, Pelosi and Scalia

Recently, I was asked, informally, to comment upon an the article linked in the title by Douglas Kmiec. Kmiec wrote the article analyzing the statement of Pope Benedict on the occasion of Speaker Pelosi's visit to the Holy See. Kmiec thought that the Holy Father was breaking tradition with the past by stating that legislators and judges had the responsibility of upholding the natural law. Of particular note is this quotation from the article:

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."

I should say, first of all, that I think the article is not a very clear one, but we are dealing with two very difficult subjects, Constitutional Law and the Natural Moral Law. The article misses the point and I will explain why this is.

I am not sure that I could agree with Scalia about the legal argument but it is something that we all must pay attention to because it is a crucial matter in understanding law in this country. Historically, Scalia’s position seems to have merit but he is walking a very thin line on the moral issue. According to Scalia, the Natural Law has no place in Supreme Court Jurisprudence. I am quite sure that this is inaccurate, but, in light of changes in the Court's jurisprudence in last 100 years, it is a weighty argument. Essentially, Scalia’s position boils down to this: The Federal Government has no authority in the abortion issue; State governments are the ones who “discover” the law (apply the Natural Law) in these matters and the federal government was given no power to do so. Thus, it is not a Natural Law issue but a Constitutional matter, arising out of the limited form of govern instituted by the Constitution, involving polity among the various states and the federal government. Kmiec, in my view, misses the point.

Scalia is clever. He is using an argument arising out of the federalist political arrangement in the abortion matter. I do not think he means all judges cannot do anything. I think he means federal judges, but I could be wrong. This is clear though, he is not saying that abortion should be allowed in the states. He is rather saying, obliquely, from a constitutional point of view, it is a question of each state’s police power. As far as I can tell, Scalia never really addresses whether or not state judges could counteract legislation favoring abortion, but I believe he might allow that they could (as in the case of a pro-abortion law clearly contradicting the state constitution). But, the federal government was given no authority at the nation’s inception to intrude in the matter. This is why he would not have intruded in the abortion matter in Roe. So, the federal government exceeded its authority in striking down a state law on the matter.

The tricky part for Scalia is this: Scalia is saying that the US Supreme Court cannot adjudicate claims based upon Natural Law. However, natural Law was very influential in our nation’s legal and political formation and was not completely foreign to Supreme Court Jurisprudence for over a hundred years. I have never felt that Scalia has really articulated his position very clearly, but he might intend, being a wise jurist, to be vague. (I do not know everything he has said on the subject).

But the Pope and Scalia are in agreement regarding Roe v. Wade. It was a bad decision. When courts create laws they become legislators. The Court overstepped its authority. The US Supreme Court has legislated abortion and it will have to rectify the situation if it is to be remedied. It would seem to me, however, that Scalia and the Pope would agree on this for different reasons, even though Kmiec seems to miss that point in his analysis. The Pope is telling all Catholics that the Natural Law prohibits abortion but he is not saying how the situation here must be rectified (i.e., The Pope is not rewriting the Constitution). It is a bit difficult to read to what extent the popes intend to lay the burden on a particular governmental body or figure. Scalia is saying, I think, as a judge of the Federal Government, he has no “competence” in matters for which federal powers are not expressly given in the Constitution. But, according to both, Roe v. Wade is bad law, for different reasons, and should be overturned under the current circumstances.

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