Democracy and the Constitution

I would like to thank Patrick for his posting Friday on Benedict XVI’s October 5^th address to the International Theological Commission in which the Pope made the case for natural law as the foundation for democracy. Amongst other important points made during this allocution, the Holy Father noted that “[a] positivist conception of law seems to dominate the thought of many scholars (and, I would add, some lawyers and the litigants they represent).” The Pope elaborated on this crucial point of his speech by indicating that this attitude leads to the tendency to “ethical relativism” that plagues the contemporary world. Patrick’s posting concludes with Benedict’s observation that, “The advance of individuals and of society along the path of true progress depends upon respect for natural moral law, in conformity with right reason, which is participation in the eternal reason of God.”

These thoughts of the Holy Father, as provided by Patrick, frame the context for a few observations on a major essay published in yesterday’s Boston Globe by Christopher Shea entitled “Supreme Downsizing.” [HERE] Mr. Shea makes the argument that

The nine members of the US Supreme Court wield extraordinary power over American Society: Last term alone, they struck down school desegregation plans in two cities, rewrote Congress’s new rules for campaign-finance reform, and modified the free speech rights of high schools students.

Shea’s essay relies on the work of Professor Adrian Vermeule of Harvard Law School (principally Judging Under Uncertainty [Harvard, 2006]), to fortify his case that since the Court “now has two blocs of justices who tend to vote together”… “momentous questions of policy” can be determined by one justice who is the swing vote. [Italics mine] I would like to suggest that this is not a new phenomenon for the Court. The Supreme Court of the United States has often reflected political tensions and divisions that have appeared across American society since the Republic’s founding. But for Shea, the situation that “now” exists provides justification for reexamining the Constitutional authority of the Court which “perhaps… shouldn’t be in such a powerful position.”

According to Shea, Vermeule’s work demonstrates that the Court “should stay out of controversial matters of politics and law almost entirely, deferring—except in painfully obvious cases—to the wisdom of the elected representatives in Congress.” Otherwise, only “perpetual rancor and inconsistency” will result, which are “the bane of good law.” The Globe article presents no insight for determining which cases fall into the “painfully obvious” category requiring the intervention of the Court.

It strikes me that if Shea has correctly identified a serious malady in our republican democracy, dependence and reliance on the “natural moral law” could be an excellent antidote to the woes identified in his Globe article. But it is necessary to return to some other elements of the Shea article which, I believe, undermine his thesis. Relying again on Vermeule’s work, Shea asserts that the nation might be better if it had no “Supreme Court rulings barring anti-abortion laws and anti-sodomy statutes.” I would not disagree with this point. But it is important to ascertain who was responsible for not only the rulings but who brought the cases that led to these decisions. The exercise of right reason suggests that these rulings were not something that the Supreme Court necessarily welcomed. They well could have been unavoidable due to the untiring efforts of powerful lobbies advocating permissive access to abortion and the institutionalization of same sex marriage. If legislatures would not produce the results these interest groups insisted on, the courts, including the Supreme Court, just might.

This is what has happened in the context of legislation addressing abortion and sex. There may well be many members of the Supreme Court who would have preferred not having to decide the merits of the lawsuits filed by these interest groups, but, the Constitution of the United States requires that the judicial department, which includes the Supreme Court, provide interested parties due process of the law.

It may well be, as Shea argues, that there is a need to step back from these issues, but is it purely the responsibility of the Supreme Court? Shea’s appropriation of Vermeule’s advice would appear better directed toward the lobbies that instigate these lawsuits rather than toward the judges who are under an obligation to decide them. With that in mind, “good law” may reign once again.

The Pope’s October 5^th exhortation made this point, albeit in more general terms. The instability of the law with which Mr. Shea and Professor Vermuele are properly concerned is not simply a question for judges alone. It is a responsibility for all who are involved with decision-making that involves all members of society—be they judges, legislators, administrators, or citizens. The natural moral law provides a sound, available remedy to many of the concerns identified by Shea and Vermeule, and it is a remedy to be exercised by all, not just by some members of our democratic society. But if the positivist mentality (especially that of the interest groups who are responsible for instigating the litigation of which Shea and Vermeule speak) continues, the sound base of democracy, the moral natural law, will erode and the problems mentioned by Shea and Vermeule will likely continue. Those of us who are concerned about lawyer formation and Catholic Legal Theory would not be the only ones who could profit from the Pope’s wise words. Our students—citizens and future lawyers, legislators, administrators, and judges—would also be the beneficiaries of his counsel.    RJA sj