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Catholic Judges, the U.S. Constitution and Natural Law

8/30/2005 - 6:00 AM PST

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Interview With Pepperdine's Douglas Kmiec

MALIBU, California, AUG. 30, 2005 (Zenit) - The nomination of Judge John Roberts, a Catholic, to the U.S. Supreme Court has turned the spotlight on the question of the interplay between religion and the law.

Douglas Kmiec, the Caruso Family chair and professor of constitutional law at Pepperdine University of Law and co-author of "The American Constitutional Order: History, Cases and Philosophy" (LexisNexis), shared with us the appropriateness of the U.S. bishops' involvement in the confirmation process, as well as the importance of the natural law tradition for prospective Supreme Court justices.

Q: Right now there are three, and there could be four, Catholics sitting on the Supreme Court. However, they often have diverging views on some important issues. Is there a Catholic way of interpreting the U.S. Constitution, or can there be legitimate disagreement about the meaning of the text?

Kmiec: The tools of constitutional interpretation are the text, history and structure of the American Constitution. Part of that history includes the Declaration of Independence and its reference to self-evident truths of creation, created equality and unalienable rights.

As Lincoln reflected, the Constitution was framed for the philosophy of the Declaration, not the other way around. It is to secure our unalienable rights that "governments are instituted." All those who would seek judicial office should sincerely appreciate the intrinsic value of the human person reflected in the Declaration.

Moreover, one would expect, and I do, that those who are truly sustained by the Catholic faith and a Catholic family, and perhaps educated in Catholic schools, would have a special appreciation by study of the natural law tradition and its direct contribution to the American order of these first principles.

As to divergence among believers, in law or anything else, that is part of the human condition. In truth, Justices Antonin Scalia, Clarence Thomas and Anthony Kennedy - the three Catholics presently on the Supreme Court -- have a statistically high level of agreement in matters of legal interpretation, though each has had different legal training and experience, and that, rather than their common faith, likely explains the variations among them.

Q: Recently, Bishop William Skylstad, president of the U.S. Conference of Catholic Bishops, sent a letter to President Bush calling for a Supreme Court justice that would rule in a number of ways consistent with the bishops' public policy agenda. What would be the jurisprudential consequences for a Catholic justice who heeded Bishop Skylstad's call?

Kmiec: Bishop Skylstad's letter was a direct and entirely appropriate expression of Catholic faith. The letter might be perceived as somewhat misunderstanding the intended role of the Supreme Court, but one can hardly fault the bishop for this since some members of Congress, themselves, wrongly think of judges as policy-makers.

As a matter of original understanding, nothing in the Constitution is at odds with any of the policies the bishop urges. For example, while the Constitution provides for capital punishment, there is nothing precluding the American people in their respective states to end or limit its application if the people come to be persuaded by the witness and prayer and instruction of Catholics -- and others -- in the public square that, as John Paul II taught in "The Gospel of Life," its application should be rare.

Q: What role should a judge's faith and moral beliefs play in his or her role as a nonpartisan adjudicator?

Kmiec: The Constitution puts religious belief off-limits for selection or qualification. It states in Article VI: "No religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." Religious belief is necessarily off-limits in adjudication.

Q: Can a Catholic judge in good conscience strike down laws restricting abortion that he or she believes are unconstitutional? What about applying unjust laws? What should a judge do in the case of a moral conflict?

Kmiec: As a matter of formal logic, it must be readily admitted that no person in or out of office can set himself or herself above the divine law. Yet, repeatedly and circumspectly, the Church's teaching is directed at "elected officials" or those casting "a legislative vote."

So neither John Kerry nor Ted Kennedy, for example, should feign surprise when they are called upon by the Church to use their persuasive gifts to legislatively reduce the incidence of abortion, and certainly not to be its propagandists.

So, too, it was entirely appropriate for Bishop Skylstad to write President Bush, an elected official, to urge policies that coincide with not only Catholic belief, but also -- when ...

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