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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 one examines the policies discussed in his letter -- truly universal manifestations of love of neighbor.

Nowhere, however, does the Church formally instruct judges to act outside the bounds of their judicial office to legislate from the bench. The Church exhibits great respect for the separation of powers, even as the justices themselves have been less than faithfully observant of this constitutional building-block.

Here, the Church is following in the instruction of St. Thomas Aquinas, who argued "that all should have some part in the government; for in this way peace is preserved among the people, and all are pleased with such a disposition of things and maintain it."

Of course, for over 30 years there has been great displeasure over Roe v. Wade for, among other reasons, its dishonoring of the democratic choices of the people.

So, while Church leaders are well within their rights as citizens to point out in public statement or amicus brief how they believe that a proper understanding of law does not support abortion on demand, a Catholic judge may be part of a judicial system that includes Roe.

In ruling on such matters, a judge does not become morally complicit in the underlying act or share in its intent. If the question is: Does John Roberts have a specific Catholic duty on the bench to restrain abortion? -- Justice Scalia has given the apt answer: "A judge ... bears no moral guilt for the laws society has failed to enact."

In actuality, given its dubious legal origin, the advocates of abortion on demand may be more concerned if the day is nearing when the Supreme Court will return to the separation of powers and follow the law of the Constitution as written -- an obligation binding upon all judges, Catholic or not.

Q: What role should natural law play in the work of a judge? Where should judges look for enduring principles to guide them in their rulings?

Kmiec: Natural law is again directly referenced in the Declaration and it is often reflected in common law jurisprudence at the state level which can play an important role in federal constitutional adjudication -- it is this common law that largely gives definition to terms such as "property," and should largely be thought to fill out terms such as "life" and "liberty" as well.

Thus, for a unanimous court in 1997 Chief Justice Rehnquist properly rejected a claim that the court should recognize assisted suicide as a protected constitutional liberty since "for over 700 years, the Anglo-American common-law tradition has punished or otherwise disapproved of both suicide and assisting suicide."

Beyond textually protected rights, Rehnquist wrote that only those liberties that are "objectively, 'deeply rooted in this Nation's history and tradition,' and 'implicit in the concept of ordered liberty,' such that 'neither liberty nor justice would exist if they were sacrificed," should have claim for judicial recognition -- and then such recognition should be only at a level of generality that exhibits "careful description."

Natural law arguments are best directed at those proposing or enacting law, but to the extent that the court in rare cases is asked to go beyond enacted text, then judicial interpretations ought not contradict human nature itself, as did Roger Taney's tragic opinion in Dred Scott v. Sanford in 1856, denying the humanity of slaves in complete disregard of the more encompassing natural law language of the Declaration that "all men are created equal."

Q: As the commentary on the Supreme Court begins to swell, what resources should Catholics turn to regarding the meaning of the American constitutional heritage and the appropriate modes of constitutional interpretation?

Kmiec: The coverage of current Supreme Court development in the major media is reasonably reliable in the short term, and I find that the Catholic News Service often supplies apt and timely commentary in diocesan papers.

Catholic law schools also publish important scholarly legal journals, such as the Notre Dame Journal of Law, Ethics & Public Policy, and the American Journal of Jurisprudence, also from Notre Dame. The Catholic University Law Review also has an online bibliography of Catholic legal resources on the Catholic University of America Law School Web site.

Other schools, such as Villanova, Fordham and Ave Maria, also do special issues and symposia on Catholic perspectives on the law.

Someone seriously interested in an in-depth study might examine my own book compiling cases and history on the American Constitution from an originalist and natural law perspective: "The American Constitutional Order: History, Cases and Philosophy."

Finally, for the Internet-friendly, the Mirror of Justice blog also includes a running, participatory discussion of constitutional development from the Catholic view.

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