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.

Pelosi, Sebelius, Kennedy, and other Errant Catholics

Speaker Pelosi , Governor Sebelius (soon to be Secretary Sebelius) and Representative Patrick Kennedy, among a whole host of politicians who claim to be Catholic, are getting a great deal of awful theological advice and, in their own way, have become errant theologians themselves. We have all heard Nancy Pelosi's foolish remarks about abortion. Recently, some correspondents have sent statements made by Gov. Sebelius and Rep. Kennedy.

Gov. Sebelius has said,

My Catholic faith teaches me that all life is sacred, and personally I believe abortion is wrong. However, I disagree with the suggestion that criminalizing women and their doctors is an effective means of achieving the goal of reducing the number of bortions in our nation.

There is another way. By working in support of the common good we can better protect human life and the dignity of all people.

If we work hard and match our rhetoric with our actions, we can create a culture that is more welcoming of mothers and treasuring of our children. We must redouble our efforts on prevention and personal responsibility. We must stand with women who feel so alone that abortion seems like their only choice. These women need people to walk with them, not cast stones at them....

If we truly wish to reduce the number of abortions further, we need to work together to truly promote a culture of life, by helping women and families get the support they need when facing unexpected pregnancies and to continue to reduce the number of abortions. Health care, child care, job opportunities, affordable housing—they are all the building blocks of a culture of life and we can use them to build a future where abortion is extremely rare.

In response to a constituent who wrote to ask him to vote against the Freedom of Choice Act, Patrick Kennedy wrote:

As you may know, the Freedom of Choice Act would codify into law the Supreme Court case Roe v. Wade, which ensures a woman's right to decide whether or not to terminate her pregnancy. In addition, this legislation also attempts to preserve a women's right to choose by preventing any legislation that would interfere or cause undue burden. I support the primary purpose of the Freedom of Choice Act, which is to ensure a woman's right to choose by making it public law, so that the national dialogue in regards to women's reproductive health and abortion may take a more fruitful course than in the past.

Regardless of where each of us stands on the issue of abortion, we can both agree that no one wants a woman to be faced with the choice to terminate her pregnancy. As former President Clinton has said, 'abortion should be safe, legal, and rare.' Therefore, I believe the dialogue of this nation should be centered on how to prevent unintended pregnancies, so that the need for abortion is greatly reduced. One important step we can take in addressing this issue is by ensuring comprehensive sex education, which instills in youth and young adults the merits of abstinence and safe-sex.

These Catholic politicians, like so many others, have all been mislead into believing that one can support laws which uphold the so-called right to abortion as long as one is personally opposed to abortion or wishes to reduce the number of abortions somehow through some unspecified social policies. The theologians behind this coaching are no doubt, themselves, badly mistaken about the meaning of freedom and the nature of law. One wonders if these theologians are the same ones that were on the list of President Obama's Catholic Advisory Council.

The statements made by these politicians demonstrate an absurd notion of human freedom, one that is completely inconsistent with human nature. Consider carefully what they are saying. A person has a right to abortion because it is a free choice. A woman has a right to kill her unborn child because of freedom. But, would reason not dictate, rather, that killing innocent human beings is not consistent with human freedom? Indeed, since we are speaking of freedom which properly belongs to human beings, would it not be more correct to say that the proper exercise of human freedom excludes the killing other innocent human beings? The mental deformity that allows one to believe that freedom includes the right to kill the innocent is so completely depraved that it should be called uncivilized and barbaric.

The codification of this notion of freedom in a national law permitting abortion is the creation of the worst kind of injustice in codified law. Since such a law sanctions the attack upon innocent human life, it makes law, which is supposedly for the common good, an enemy of the fundamental good of human life. There is no reasonable proposition that would justify the sanctioning of the destruction of the good of the life of one in the name of the good of freedom of another. How could one human's authentic good, in this case freedom, possibly be the cause for permitting the annihilation of another person's right to live? If such a law cannot be considered unjust and, indeed, barbaric, by all reasonable people because it contradicts the good of human life, on what basis would any law against human killing be based? There are only two elements in the equation--freedom of choice and defenseless human life. Is it that none of the theologians giving this bad advise to these politicians see the unreasonableness? If all they are asserting in the end is some political notion of freedom and rights, then, are we not saying that any form of human oppression can be justified in the name of freedom?

These theologians and politicians have contributed to the continuing downhill slide into an anarchical tyrrany of relativism.