Response to Tom

I'm happy to accept Tom's invitation to re-visit our "friendly debate" about judges.  In his post ("The post so nice, it's posted twice!"), he writes:

I don't agree that it's enough to argue, as Rick does, that the existence of federalism limits in the Constitution is just "a fact" and therefore a judge who enforces them can't face any conflict with Catholic social teaching.  The judge is not just recognizing the existence of those limits as a fact; as I've stressed before, s/he is also implementing those limits and enforcing them on a legislature, stopping the legislature from pursuing (let's assume now) some moral good (or even moral necessity).

My view, I think, is that even the implementing and enforcing of the "fact of federalism" is not going to create any conflict with Catholic Social Teaching.  Tom asks:

[A]re the constitutional limits on federal power to address economic and social needs "at odds with Catholic social teaching"?  I agree with Rick that to answer that question "yes" in general is a stretch.  But the issue is not just the "fact" that the limits exist.  I still think that that's too positivist a position to reflect Catholic moral theory as I understand it.

I would not want to be heard to say that any fact about the Constitution is, by virtue of its fact-ness, thereby immune from the possibility of conflict with Catholic moral thinking.  But, in my view, this fact -- i.e., the fact that the Constitution does not confer upon Congress a general regulatory power, even in cases where that power is being used, or proposed to being used, for Catholic-consonant ends -- is pretty well immune.  This is, it seems to me, not to say that certain policy implications of this fact are so immune. 

I think Tom's discussion of the obligations of judges in the legal system of the Nazis is important, but also goes beyond my more limited point, and O'Brien's argument.  My suggestion was not that positive law involves, always and in every context, such fact-ness that judges' decisions and obligations are beyond the reach of Catholic moral teaching.  It was only that, whatever Catholic teaching might be about, say, the best way to approach certain problems, the fact that Congress lacks the power to address or resolve every such problem is not, itself, something that really can conflict with Catholic social teaching.

Rick