Skip to main content

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

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 ...

1 | 2  Next Page

Rate This Article

Very Helpful Somewhat Helpful Not Helpful at All

Yes, I am Interested No, I am not Interested

Rate Article


Leave a Comment

Comments submitted must be civil, remain on-topic and not violate any laws including copyright. We reserve the right to delete any comments which are abusive, inappropriate or not constructive to the discussion.

Though we invite robust discussion, we reserve the right to not publish any comment which denigrates the human person, undermines marriage and the family, or advocates for positions which openly oppose the teaching of the Catholic Church.

This is a supervised forum and the Editors of Catholic Online retain the right to direct it.

We also reserve the right to block any commenter for repeated violations. Your email address is required to post, but it will not be published on the site.

We ask that you NOT post your comment more than once. Catholic Online is growing and our ability to review all comments sometimes results in a delay in their publication.

Send me important information from Catholic Online and it's partners. See Sample

Post Comment

Newsletter Sign Up

Daily Readings

Reading 1, Jonah 3:1-10
The word of Yahweh was addressed to Jonah a second time. 'Up!' ... Read More

Psalm, Psalms 130:1-2, 3-4, 7-8
[Song of Ascents] From the depths I call to you, Yahweh: Lord, ... Read More

Gospel, Luke 10:38-42
In the course of their journey he came to a village, and a ... Read More

Saint of the Day

October 6 Saint of the Day

St. Bruno
October 6: Bruno was born in Cologne of the prominent Hartenfaust family. ... Read More