More on Federalism and Moral Conflict

After some reflection, and with Tom's help, I have decided that I was not quite fair to David O'Brien's Commonweal essay, "The Church, Judge Roberts, and the Common Good."  In my original post, I wrote (among other things):

it is not the case that it conflicts with "important elements of Catholic social teaching" to believe that, the Constitution -- a legal document -- really means something that, let's concede for now, might make achieving certain Catholic-supported policy goals more difficult.  If it is a fact -- and, I think it is -- that the Constitution does not give Congress a general police power or general regulatory authority, then it is hard for me to see how this "fact" could conflict with "Catholic social teaching," any more than could the "fact" that, say, edible and nutritious grains don't grow everywhere.

Now, to be precise, here is the statement in O'Brien's piece to which I was responding:

Will a Chief Justice Roberts join “originalist” justices such as Clarence Thomas, committed to eighteenth-century ideas about government and liberty? Some early reports associated Roberts with the Federalist Society and its hankering to return to pre-New Deal restrictions on federal powers. That position is at odds with important elements of Catholic social teaching.

On reflection -- and giving him the benefit of the doubt -- I think that O'Brien could be arguing that the "position" which is "at odds with important elements of Catholic social teaching" is the "hankering to return to pre-New Deal restrictions on federal power", i.e., the desire to impose new restrictions on existing federal power, the effect of which would, the argument goes, invalidate important social-welfare legislation. 

Of course, Judge Roberts has no such "hankering."  To think that Congress lacks plenary regulatory power, and that Article I of the Constitution is judicially enforceable, is not to commit oneself to undoing the New Deal.  In any event, I think that O'Brien is wrong that "pre-New Deal restrictions on federal power" -- by which some might mean, "the structural arrangements actually designed by the framers and endorsed by the ratifiers" -- are "at odds with important elements of Catholic social teaching."  As I said in my original post, I do not think that these structural arrangements, in themselves, could plausibly be said to "conflict" with anything in Catholic teaching or thinking.  (Quite the contrary, in fact). 

This does not mean -- as Tom's post reminds me -- that (a) a judge enforcing the founders' design would not feel any "moral conflict" about invalidating a well-meaning federal law, particularly if the judge believed that local authorities were not responding justly to pressing problems; or that (b) a state of affairs under this design -- say, a state of affairs in which state governments were permitting abortion on demand but the federal government was powerless to intervene to protect unborn children -- would be immune from moral criticism.    

Tom also asks:

[S]uppose a justice in 1966 conscientiously concluded that under proper interpretation of the Commerce Clause, he would have to vote to strike down the Civil RIghts Act's prohibitions on discrimination in employment, restauraunt service, and lodging accommodations (on the ground, correct or not, that the Act was a police-power rather than a commercial regulation).  Suppose the justice further concluded, in good faith (and I'd say reasonably) that blocking Congress from prohibiting discrimination would leave African-Americans in southern states subject to serious oppression and deprivation of basic human goods such as decent work and the ability to move with some freedom, and that the state and local governments would do nothing to correct the injustice (in fact, would support the discrimination vigorously).  Shouldn't the justice in this situation feel a serious moral conflict? 

In my view, Catholic moral teaching need not be understood as requiring the justice to avoid this effect by, in effect, exercising power he or she lacks, or validating others' exercise of power that they lack.  And, in my view -- again -- the fact about our Constitution that Congress lacks a police power, standing alone, is not one that is, or even can be "at odds with important elements of Catholic social teaching.