Cooperation with Evil: Reasons for Skepticism

Given my woeful lack of expertise in matters of moral theology, I am reluctant to offer a direct answer to Steve's question. I will, however, offer two rather straightforward points as to why I'm inclined to hope that articulating a certain theory of constitutional interpretation would not amount to material cooperation with evil simply because its application could support abortion rights.

First, constitutional theorizing tends to cut a very broad swath. I don't know of any widely held theory of constitutional interpretation that inherently defies the worldview grounded in the Church's moral anthropology. Certainly the advocacy of particular theories in particular contexts toward particular ends can be problematic. But in the abstract, things are not so clear. If we jettison a theory because it potentially lends support to abortion rights, we very well may be foreclosing a potentially powerful defense of parents' rights. (As Rick's work on school choice reflects.) Absent advocacy by the constitutional law scholar in a particular troublesome context, I would be reluctant to hold her morally culpable for crafting the theory in the first place.

Second, I believe that Catholics (along with other faiths that purport to make truth claims) should be especially cautious about turning their backs on theories that facilitate spheres of autonomy from state intervention. This does not require us to embrace the outcome of every case that claims to further individual autonomy, but we should weigh carefully what is gained and what is lost before we write off entire interpretive theories. As we can see from the Catholic Charities case (discussed in Rick's posts below), the ability of Catholics to appeal to the common good in the political forum as a means by which to defend their institutional autonomy is rapidly being overtaken by the expanding and non-negotiable individualist norms of the liberal project, and the electorate seems increasingly unsympathetic. I'm not suggesting that an unfettered rights-based discourse is to be sought, or that every libertarian theory of constitutional interpretation must be embraced, but I would at least hazard a glance toward the oncoming freight train of American individualism before we confidently entrust the fates of our mediating communities to the political sphere.

Rob