Legal scholar Professor Sandy Levinson's book, "Constitutional Faith," was the theme of an opinion essay in the Boston Globe today. (I'm looking forward to seeing if the book moves up in the Amazon rankings as a result!). According to the writer:
Levinson, in an argument first made in his 1988 book ''Constitutional Faith," argues that disputes over how to interpret the Constitution descend from the original schism of the Reformation. ''Anyone seeking to examine the operation of the Constitution within the American polity," he writes, ''must come to terms with the implication and traces left over from the Reformation era."
The constitutional schism, as he sees it, runs along two different axes. The first is methodological, and concerns the source of doctrine. For ''protestant" jurists--originalists like Scalia and Clarence Thomas (both, ironically, devout Catholics)--that source is the constitutional text alone. For their constitutionally ''catholic" colleagues, however, the text is augmented by ''tradition," even unwritten tradition. These are the ''living constitutionalists" (in the words of former Justice William Brennan), justices like Ruth Bader Ginsburg and Stephen Breyer, who are willing to believe the Constitution has something to say about issues like abortion and gay marriage that the Founders never thought to mention in the document itself.
The second axis concerns who has ultimate authority to interpret the Constitution. And here the Catholic position takes on a more conservative tint. As Levinson points out, the Reformation wasn't just a dispute over how much to interpret the Bible, but over who gets to interpret it. For Luther and his followers it was the individual worshipper, not the Church hierarchy, who was best qualified for the task.
And, by way of background, the writer points out that:
These days, when Republican senator Sam Brownback of Kansas can convert from conservative Methodism to conservative Catholicism without any appreciable effect on his public profile, it's perhaps easy to forget that there are, in fact, fundamental differences that separate the Catholic and Protestant traditions. At root, they are disputes over interpretation of Scripture and the authority of the Bible. [RG: As I mention below, it seems to me that they are just as much "disputes over" the nature, mission, and authority of the Church].
''The notion of Biblical inerrancy, of Biblical literalism, is really un-Catholic," says Alan Wolfe, a political scientist and scholar of religion at Boston College. ''The whole point of having a priesthood and a magisterium [the Latin term for the Church's teaching authority] is to say that the Bible, while a supreme guide, is constantly to be reinterpreted. That's why you have the Church." For Catholics, in other words, coequal with the Bible itself is ''tradition," the accretion of interpretation and elaboration that the Church builds onto Scripture.
It's been a few years since I read Levinson's book. It struck me, I remember, as intriguing and interesting, but maybe a bit forced. Certainly, there's something to the points that (a) constitutional law involves an authoritative text and an interpretive tradition, (b) there is a debate about the authority of the tradition's "take" on the text, and (c) over the years, the disagreements between Protestants and Catholics have also touched upon, if not stemmed from, similar arguments about the authority of, and connection between, text and tradition.
It's fine, I suppose, to lift the labels, "Catholic" and "Protestant" from the religious and theological contexts, and then re-attach them to the (apparently) similar "sides" of the debate in constitutional law. The mistake, though -- it seems to me -- is in thinking that there is anything really "Catholic" about reading the Constitution in the way that Professor Levinson labels "Catholic" (same with "Protestant"). I'm not a theologian, of course, but it strikes me that the "Catholic" position in the text-and-tradition argument in the theological arena has a lot to do with the Catholic Church's (and the Protestants') ecclesiological claims. The editorial writer suggests -- and I think he might go beyond Professor Levinson here -- that a "textualist" or "literalist" approach to constitutional law (the "Protestant" approach) is somehow inconsistent with a judge's Catholic faith. But there's no reason for a Catholic judge -- who endorses entirely the "Catholic" take on text, interpretation, development, etc., -- to think that a written Constitution, ratified and amended through (pretty much) democratic processes, is the same kind of thing and should be interpreted in the same way as the "deposit of faith," or that the Supreme Court should be regarded in the legal scheme of things in the way that the Church's magisterium is regarded on the theological side.
I know there are theologically trained readers out there who can capture better what I'm trying to say, or point out my mistakes. My point, in the end, is that -- while it might be useful to refer, as Levinson does, to a "Catholic" constitutionalism (i.e., the "living" Constitution, etc.) -- it actually is not the case that such an approach to reading our Constitution is, in fact, "Catholic" (or "Protestant"). Any thoughts?
Rick
Forgive my tardiness as I've been milking the last ten days of vacation out of summer, but I wanted to offer a response to Rick's post last week in which he wonders why folks like Christopher Hitchens single out Catholicism as a threat to a judge's impartiality. Rick asks "why the possibility of exclusion from the Catholic Church and its sacraments is treated so differently by Hitchens, in terms of its possible corrupting influence on a judge's deliberations, than would be the possibility of exclusion from any other association, institution, or relationship?"
There are two reasons, in my view, why Catholicism is seen as more threatening to impartial judging than other associational ties, even religious ties. Take Catholicism versus Protestantism. First, the vast majority of Protestant denominations are congregational with nothing approaching the hierarchical authority found in the Catholic Church (for better or worse). Many years ago one of my family members engaged in some outrageously un-Christian behavior and was removed from the membership of our evangelical congregation (by a majority vote of members). This act had no impact on his ability to attend or participate in worship at the church, nor did it hinder his ability to join another church -- even another church within the same denomination. Bill Clinton's public positions or private conduct could get him kicked out of his local congregation, but there's no mechanism (as far as I know) by which the Southern Baptist Convention could have him excluded from all member churches. In other words, the threat of exclusion is much broader for Catholics than for Protestants.
Second, for Protestants, exclusion from the church has little or no impact on their salvation. There is nothing akin to the Catechism's statement that "they could not be saved who, knowing that the Catholic Church was founded as necessary by God through Christ, would refuse either to enter it or remain in it." For Protestants, belief on the Lord Jesus Christ (John 3:16) is the whole ball of wax; whether or not an individual is in or out of a church's fellowship is important, but has no eternal ramifications. In other words, the threat of exclusion is much more serious for Catholics than for Protestants. (And obviously, of a wholly different nature than is an exclusion from the Boy Scouts, the 4-H Club, etc.)
To be clear, I agree with Rick and others that Hitchens is wrong, chiefly because it's difficult even to imagine situations where the Church would consider excluding a judge for fulfilling her public duties. But I don't think we can equate Catholicism with other associational ties in terms of the pressure they could bring to bear on an individual member.
Rob
Tim Russert did a segment on the Roberts / Catholic / etc. question this morning on Meet the Press. Professor Doug Kmiec and former Govenor Mario Cuomo were the guests. Here is a link the transcript. We've talked a lot about this matter, I know. Still, I was struck by two things:
First, Governor Cuomo's understanding of what the Church does or proposes when it teaches seems strange to me. Several times, he seemed to reduce the Church's moral teachings to things "the pope says." For example, he said:
Everybody takes an oath to support the Constitution, including especially judges. So why not ask them: "Will you, Judge, apply a religious test to the Constitution? Will you start by saying, `I'm not going to support the Constitution if my pope tells me not to'?"
And:
Here, ironically, if you want to say religious test, the question for Judge Roberts is, "Are you going to impose a religious test on the Constitution? Are you going to say that because the pope says this or the church says that, you will do it no matter what?
And:
If people believe that there is a possibility that as a Catholic when you go on the bench or you go into the Congress or wherever as a public official, you would put your Catholic church teachings before the Constitution, then they will not know where you're going to be, because the Catholic church can come up with a teaching any day. They can change teachings, and they do.
I wish the point had been made that the Church's teaching on abortion -- whatever its merits -- is not merely an "ipsedixitism" (assuming that is a word).
Next, I came to think, watching the segment, that the "back story" to the whole Roberts and Catholicism business is the lingering anger of many Catholics over the Kerry and Communion business. That is, Governor Cuomo -- like E.J. Dionne and Michael McGough in their recent op-eds -- seemed in the interview with Russert almost eager for Roberts to say, to the Senate, that he would, although Catholic, comply with his oath to uphold the Constitution, because -- in Cuomo's view -- this will create a "political difficulty" for those Republicans who might have enjoyed it when some bishops were publicly critical of abortion-rights-supporting candidates and politicians. Here is Governor Cuomo:
Now, practically and trying to be constructive, the question has to be answered. What you're really saying to the judge is, "Look, judge, just tell us whether there's anything about you, your religion or anything else, that will make you defy your oath to put the Constitution first." His answer is clear. He can only say one thing. "No. There is nothing." "Not even your religion?" "Not even my religion." OK. The reason they're trying to duck that issue is that then gets them into trouble with all those conservative Republicans, politicians and clerics who have attacked Democrats like Kennedy, like Ted Kennedy, like Gerry Ferraro, like John Kerry in the last campaign and said, "Oh, if you're religious," you know, "then you've got to do what the church says or you're a hypocrite." If Judge Roberts puts himself into that position, then the shoe is on the other foot politically.
Again, as Fr. Araujo and I have been discussing, I do not think an appellate judge passing on the validity, under the Constitution, of a particular regulation limiting abortion is in the same position as a candidate who says, "vote for me because I support and will increase access to legal abortion and will vote against or veto efforts to limit it." Certainly, though, any criticism directed at abortion-rights-supporting Catholic politicians needs to be directed at Republicans no less than Democrats.
Rick
UPDATE: I deleted a few sentences from the original version of this post, because readers called to my attention the possibility that I might be understood as questioning the sincerity of Governor Cuomo's statements that he is "personally pro-life."
Sunday, August 7, 2005
My gratitude is extended to Rick for his thoughtful reflection on my earlier post regarding judges. It is my impression that most folks realize that all American Catholics are addressed in the CDF’s note. Of course, the nature of the particular Catholic citizen’s role in public life depends on the individual’s role as citizen, legislator, lawyer, or judge. And all are citizens. I do not think it is possible to chart specific courses for each person in these groups; however, we are all guided by the same first principles of faith and our Church’s teachings. At this point, I think it productive to recall some of the earlier discussions that raised the role of virtue in the American Catholic’s public life. I, for one, believe that virtues are essential to how a Catholic lives his or her life in right relation with God and the neighbor. Reliance on them helps each of us deliberate issues and make decisions. As I have suggested in some of my earlier work, I believe that reliance on virtues is vital to the work of judges and members of the legal profession in general.
Allow me to make a few remarks about Rick’s questions regarding the role of the Catholic judge in capital cases. Like the legislator or any other citizen who is confronted with an existing legal structure, the Catholic judge ought to be mindful of what the note and Evangelium Vitae instruct. Some consideration should also be given about whether the judge is a trial judge or an appellate judge, for each has different responsibilities in assessing the legality and propriety of capital punishment. Indeed, in some jurisdictions for particular crimes, capital punishment is the law. All of us are cognizant of this. So, what does the Church teach? Its position contains nuance, but I think it is evident that as of this moment the Church would prefer life imprisonment to execution even though the latter is not condemned outright.
And what does the judge do in light of this? Well, most of us were on the face of this planet when the Supreme Court stopped capital punishment in Furman v. Georgia. Judges could certainly undo what they undid in the past. I have already suggested this in the context of Roe. Not being a man who wagers, I shall forego discussion about the probability of this happening.
Given the current context of capital punishment and Church teachings, the Catholic judge does not contravene the teachings of the Church by permitting the state to execute the convicted. Neither does the judge flaunt the law by exercising what judicial discretion is at his or her disposal. But the matter does not stop there. As there are different theories about punishment (retribution, rehabilitation, etc.), so there are different approaches for the Catholic judge to consider. One sensible approach might be akin to a Catholic version of the secular rehabilitation perspective. Is there some chance that the convicted who could be executed might some day sincerely seek forgiveness for the heinous crime that could be punished by execution? Both the judge who is operating from a foundation of Catholic teaching and the judge who is not are dealing with different versions of the same issue when the rehabilitation perspective is at work. In the meantime, the convicted person continues to be punished by being deprived of liberty etc. in prison, which is usually not a particularly nice place to spend the rest of one’s earthly life. But the convicted still retains an extended opportunity to seek forgiveness.
I have not addressed many of the issues that Rick has raised, but I hope I have contributed a thought or two that can help us see that Catholic judges and non-Catholic judges just might have some appropriately shared options in capital cases based on issues of faith and points from secular legal theory. I would like to make one final point that I think Catholics and believers from other faiths would agree: there is still one more tribunal to go after the Supreme Court of the United States, and that is a tribunal which each of us must face some day. Might we ponder an exhortation that applies to us all: the Lord is kind and merciful, slow to anger and rich in compassion. RJA sj
