The Faith of John Roberts

Jonathon Turley in the LATimes today

Judge John G. Roberts Jr. has been called the stealth nominee for the Supreme Court -- a nominee specifically selected because he has few public positions on controversial issues such as abortion. However, in a meeting last week, Roberts briefly lifted the carefully maintained curtain over his personal views. In so doing, he raised a question that could not only undermine the White House strategy for confirmation but could raise a question of his fitness to serve as the 109th Supreme Court justice.

The exchange occurred during one of Roberts' informal discussions with senators last week. According to two people who attended the meeting, Roberts was asked by Sen. Richard Durbin (D-Ill.) what he would do if the law required a ruling that his church considers immoral. Roberts is a devout Catholic and is married to an ardent pro-life activist. The Catholic Church considers abortion to be a sin, and various church leaders have stated that government officials supporting abortion should be denied religious rites such as communion. (Pope Benedict XVI is often cited as holding this strict view of the merging of a person's faith and public duties).

Renowned for his unflappable style in oral argument, Roberts appeared nonplused and, according to sources in the meeting, answered after a long pause that he would probably have to recuse himself.

It was the first unscripted answer in the most carefully scripted nomination in history. It was also the wrong answer. In taking office, a justice takes an oath to uphold the Constitution and the laws of the United States. A judge's personal religious views should have no role in the interpretation of the laws. (To his credit, Roberts did not say that his faith would control in such a case).

Comments

[Patrick Rothwell]

Turley is being a clever lawyer here, but I fail to see why Robert's promise to recuse himself if his public duties conflicted with his religious duties - which isn't likely to happen, in my view - opens the door to more searching questions about his religious faith when John F. Kennedy gave a similar answer in the otherwise awful speech before Houston Ministerial Association in 1960s.

"But if the time should ever come -- and I do not concede any conflict to be remotely possible -- when my office would require me to either violate my conscience or violate the national interest, then I would resign the office; and I hope any conscientious public servant would do likewise."

[mh]

The ability to segment sections of one's conscience in the decision-making process is curious. How does a truly integrated person accomplish this?

[Cheeky Lawyer]

Turley is trying to create controversy where there is none. I saw Durbin this weekend on one of the weekend shows, I think Meet the Press, and he didn't mention anything about this. Second, I don't see how this is the wrong answer unless one thinks that there will be frequent conflicts between Roberts' faith and the law. If Roberts reads the law correctly then there should be no problem when it comes to abortion. Third, Turely misstates Catholic teaching on the death penalty and that is a great disservice to his point. Turley who often is on Fox strikes me as a bit of an jerk so this article doesn't surprise me too much but I still think Turley's reading of things is problematic on several levels.

[Septimus]

I've been skeptical about Roberts, as many know, but I like that answer: it shows a good instinct.

Of course it's the right answer: if ones civic duty conflicts with ones duty to God, God must prevail, as St. Thomas More showed us. St. Thomas "recused" himself from his office as chancellor for essentially that reason.

[Mike Petrik]

I agree with both Patrick and Cheeky. Turley is just desperately trying to make something our of nothing. It won't work.

[Peggy]

Mike,

Isn't that the whole objective of the left: "make something out of nothing" (for this and any other Bush nomination). They're working hard at it!

[Christopher Fotos]

The ability to segment sections of one's conscience in the decision-making process is curious. How does a truly integrated person accomplish this?

A truly integrated peson does not. But that's okay, for the Turleys of the world, since people with secular outlooks are allowed to apply their own principles in public. The religious are not. It says so right in the Constitution, or should, or will.

[William Bloomfield]

Turley also fails to comprehend the difference between the legislator and the judge. No Church official has ever stated that a judge is required by the Catholic faith to find a right to life in the Constitution. A judge must faithfully interpret the law. If a faithful interpretation of the law requires the cooperation with evil, the judge should recuse himself, just as Roberts said. Roberts' position appears to be the same as Scalia's.

As others have said, Turley is attempting to make something out of nothing.

[Tony Miller]

Senator Durbin has no conflict with his Catholicism. When there's a conflict he adjusts his Catholicism.

[al]

"No Church official has ever stated that a judge is required by the Catholic faith to find a right to life in the Constitution"

I beg to differ--the right is already in there, no legitimate Constitution should be without it.

But even if the conversation is reported accurately, I don't find it worrisome.

The critique of the "right" to abortion, and impetus to the necessary overthrow of that right, come not from Catholic Doctrine, though Catholic Doctrine certainly (and perhaps singlehandedly) uphold them, but from the natural law, to which all are bound whether they acknowledge it or not.

The Nazi's asserted at Nuremberg that positive law was sufficient to justfy their actions, claiming they were merely obeying orders. That excuse was properly rejected by men of good will

[Simon]

This is coccoon-left nonsense.

Roberts would face a conflict between his official duty and his religious beliefs on the abortion issue, for example, only if he sincerely believed:

(1) The Catholic Church required him as a justice to vote to to overturn Roe;

AND

(2) The Constitution required him as a justice to vote to uphold Roe.

Thesis (1) would be a subject for an interesting debate (on another thread!). But it's moot here because thesis (2) is preposterous.

Outside of the most ferocious advocates for keeping abortion legal everywhere and in all circumstances, no one familiar with the legal reasoning of Roe finds it a plausible reading of the US Constitution. Even my left wing, pro-choice law professors mocked it. The decision was, as Justice White called it in his dissent, an exercise of "raw judicial power" having nothing at all to do with the actual Constitution of the United States. There is simply no way an intelligent Catholic (or anyone else) could be presented with an ethical conflict on this point.

Conversely with the death penaly, Roberts could face a conflict only if he simultaneously believed that:

(1) The Catholic Church required him as a justice to invoke the US Constitution to overturn individual death sentences and/or to vote to abolish the death penalty altogether;

AND

(2) The US Consitition required him as a justice to vote to uphold the death penalty.

Here thesis (1) is ridiculous. Although the Church's position on the death penalty is evolving rapidly against it, the Church does not and never will have a position on whether the US Constitution prohibits the death penalty -- and that is the only question that a constitutional jurist is competent and entitled to answer.

Turley is trying to stir up controversy where there is none. Why? Because he knows he can tap into the visceral hatred and fear of Catholicism and evangelical/pentecostal Protestantism that is the core motivating force behind the political and cultural Left today.

[tim]

In his column, Turley presumes that Roberts' faith will but him in opposition to the "law". In reality, Robert's future Supreme Court oath to uphold the Constitution of the United States will enable him to rule in good conscience on matters related to Life, Liberty and the Pursuit of happiness.

[Lord Sicilianus]

The real importance of the article (or hit piece?) is not so much in what Roberts will or won't do, but rather what the author, and most certainly, the LA Times (in enforcement of the secularist consensus foisted upon us by the major media and all of our other key cultural institutions), expects him to do and to not do. And the terms are unmistakably clear: if you put God and His Truth first, you have no place at the table in contemporary America. Period.

We ought to be asking ourselves if this is the kind of table we would want to have any place at!

[Der Tommissar]

I figure Durbin was expecting him to answer,

"I would say having to make such a choice is the same as being put in a gulag."

That would have made Durbin happy.

[Kevin Jones]

Anybody know if there were any Catholic judges who faced the prospect of having to uphold the Buck v. Bell decision? That's the "Three generations of imbeciles are enough" decision upholding the coercive sterilization of certain undesirables.

[Dan Crawford]

Watch the spectre of anti-Catholicism raise its ugly head again in American politics. Today the Pittsburgh Post-Gazette, published an op-ed article pointing out that Catholics would now form a "plurality" on the Court if Roberts were confirmed for the Supreme Court. After several centuries of Protestants forming a "plurality" on the Court with no comment, this particular article is no doubt meant to serve as a red flag for the abortionists and the gay rights folk. Hang on, gang. We're about to see the revival of the Know-Nothings. I wonder when Harper Collins will publish an -up-to-date "Maria Monk".

[Jim]

al wrote:

"I beg to differ--the right is already in there, no legitimate Constitution should be without it."

Unlike Mormons, Catholics do not believe that the U.S. Constitution is divinely inspired. The Constitution and its judicial interpreters can be wrong. As to the issue of abortion, it is the Church's position that it is currently being wrongly interpreted.

Roberts was right: he could recuse himself -- or he could resign, if he found that his faith was in repeated conflict with his oath to uphold the U.S. Constitution. The position of justice on the U.S. Supreme Court is a wholly voluntary one. Judge Roberts is not being compelled to serve.

[al]

Jim,
Its an elementary principle of Political Philosophy that any government which did not explicitly or implicitly ensure a right to life for its citizens would not be a legitmate Government.

In fact, that would probably be the Archtype of a Tyranny--the failure to ensure such a right. Thankfully, the Declaration tells us that it is indeed the Mark of a Tyranny to fail to secure the right to life: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. --That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness."

[Mike Petrik]

Excellent post, Simon.

[Celine]

al:

From what you write, we must conclude that the United States government is presently an illegitimate tyranny because it fails to protect -- indeed, forbids the protection of --the unborn. Persumably, therefore, no Catholic can honorably serve in the military or take an oath of office?

By the way, you seem to misconstrue the Constitution. The Fourteenth Amendment provides that no State may "deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." But its Framers did not regard the unborn as "persons" -- there is no indication whatever that they intended to provide the unborn with the same rights that they intended to were provided to the former slaves. (Talk about reading personal beliefs into the Constitution!) Therefore, the Constitution does not guarantee the unborn the "right to life." A constitutional amendment would be required to assure the unborn any constitutional rights -- although, if Roe v. Wade were reversed, the States could provide the unborn legal protection, if they wanted to.

[Desert Chatter]

Al:

Civics 101: The Declaration of Independence is not a governing document in our system of jurisprudence. The reference was to the Constitution and whether the right to life was already in there.

As of the moment, it is settled law that it is not. Absent the votes to change the Constitution, we're left with having to change hearts and minds -- which, of course, a church is ideally suited to do.

[Simon]

Anybody know if there were any Catholic judges who faced the prospect of having to uphold the Buck v. Bell decision? That's the "Three generations of imbeciles are enough" decision upholding the coercive sterilization of certain undesirables.

The only Catholic member of the Supreme Court at the time of Buck v. Bell (Pierce Butler) was also the only dissenter in that case.

Like Roe, Buck v. Bell was an appalling decision that required bending the Constitution beyond the breaking point to imagine a "right" (the right of the "healthy" majority to sterilize the "genetically unfit") that happened to coincide with the elite consensus of the day. One need not have been a Catholic to have opposed the decision purely on Constitutional grounds.

[Lord Sicilianus]

We're about to see the revival of the Know-Nothings. I wonder when Harper Collins will publish an up-to-date "Maria Monk".

Doubleday beat them to it. It's called The Da Vinci Code.

[al]

Desert,
I hardly think many people, including those who've taken "Civics 101" would agree that the Declaration has no value in providing the interpretative context for the constitution. That's the kind of silly argument libertarians make.

In any case, what do Article 4 and Amendments and 5 and 14 refer to, if not the right to life: "nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

. . . nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

[Desert Chatter]

Al:

No one said anything about the Declaration having "no value" -- that kind of strawman argument is unworthy of someone as argumentative as you.

I merely said that the Declaration is not a governing document. Anyone who has completed the Civics 101 level would have recognized that.

[al]

Desert,
Maybe I skipped few classes in Civics 101, but If the Right is defined in the normative interpretative context, (ie. the Declaration) and then expressly mentioned in the Constitution, I think that suffices for a "governing" status.

[jthomas]

Some in the Democratic party seem to want to resurrect the Know-Nothing nativism of the late 1800's with canards such as this w Judge Roberts, and also with Judge Pryor when he was filibustered on his initial nomination to the appellate court

[al]

Celine,
Please provide any evidence that the founders intended to exclude unborn persons from the blanket protections of the Constitution.

[Tony]

"But its Framers did not regard the unborn as "persons" -- there is no indication whatever that they intended to provide the unborn with the same rights that they intended to were provided to the former slaves."

By your logic, the Framers also did not regard women as "persons". And at the time of the framers, there was not a widespread abortion problem.

[Desert Chatter]

Al wrote:

"Maybe I skipped few classes in Civics 101, but If the Right is defined in the normative interpretative context, (ie. the Declaration) and then expressly mentioned in the Constitution, I think that suffices for a "governing" status."

Say what? Just making up a long complicated sentence with big words is not the same thing as actually knowing what you're talking about.

The Declaration of Independence is a valuable historical document, but it is not a governing document of this country and never has been. No legal right or obligation can be attributed to the Declaration. I'm thrilled that you are inspired by it, but it has no controlling force vis-a-vis the Constitution.

[frank sales]

Turley writes that a judge vows to uphold the laws of the US and the Constitution. He forgot to remind us that when Souter, Breyer, Stevens and Ginsberg are faced with the dilemma of their own moral beliefs conflicting with the Constitution and the Law, they simply change the Constitution and/or the Law!

Leahy, Durbin, Kennedy and the other Catholic Senators should be ashamed. They wag their fingers in warning about Catholic principles trumping the Constitution while consistently applauding constitutional manipulation by left wing judges promoting the anti-life, anti-family agenda.

[Celine]

al:

No, the burden of proof is on you. You provide some scrap of evidence that the Framers of the Fourteenth Amendment intended to include the unborn as "persons." Any court decision anywhere at any time holding that the unborn were intended as Fourteenth Amendment "persons" will also do.

You cannot because there is no such evidence or decision. You are introjecting your personal beliefs into the Constitution in the same manner as any Blackmun or Douglas did -- all in a good cause, no doubt. Shame on you, you liberal, you!

Abortion was largely legal (at least until quickening, or until about 5 to 5 1/2 months) through the early 19th Century in the U.S., until states began passing bans throughout pregnancy in the later part of the century -- some, during the time that they were also ratifying the Fourteenth Amendment. Yet there is no evidence that anyone drew any legal conclusion about abortion from the Fourteenth Amendment. And none of the states that enacted abortion bans treated the unborn as "persons" or "individuals" under their criminal codes or constitutions.

[al]

Desert,
Riiiight.

The Declaration of Independance has no governmental weight.

I guess we're still part of Great Britain, then, just with our own funny Constitution.

[al]

Celine,
No, the Burden of proof is on you, since abortion was against the law prior to Roe's "discovery" and so the weight of jurisprudence obviously held to the personhood of the unborn, which is manifest looking at late term pre born infants, but which the idiotic Roe fabrication of a right, allows to be exterminated.

[Desert Chatter]

Al:

The limits to your misinformation are unbound. Abortion was legal in some states and illegal in others prior to Roe. Don't let your enthusiasm for the pro-life position lead you to disregard the facts. It distracts from the underlying correctness of your position and makes you look like a rabid, irrational ideologue.

[Donald R. McClarey]

"And none of the states that enacted abortion bans treated the unborn as "persons" or "individuals" under their criminal codes or constitutions."

Untrue. The laws of all the states and the federal government treat, and have treated, unborn children as persons for various purposes, including inheritance, criminal law, personal inury, governamental benefits, etc. Only in the context of abortion, due largely to Roe, are unborn children treated as things rather than persons.

[al]

Desert,
If it was illegal in some states, then it was illegal.

Its just what the words mean. Illegal means illegal.

[sj]

Rather than a finding that the majority have a "right" to sterilze those they deem unfit, Buck v. Bell could best be characterized as a finding that nothing in the U.S. Constitution prevents a state legislature from setting up a legal process by which those deemed unfit may be sterilized. Justice Holmes,the author of the opinion, may have been the foremost positivist to ever serve on the Supreme Court.

The post WW2 reaction to Legal Positivism and observation of what judges in Germany had acquiesed to, may have had a lot to do with the subsequent searching for rights in penumbras that led to Roe. Obviously, positivism is a double-edged sword.

[Rich Leonardi]

Excellent post, Simon.

Agreed. Excellent logic. But you'd think Roberts would have seen a question like this coming and had a stock answer similar to the one Simon offered.

[Victor Morton]

Al wrote:

since abortion was against the law prior to Roe's "discovery" and so the weight of jurisprudence obviously held to the personhood of the unborn

And then:

If it was illegal in some states, then it was illegal.

Mmm ... not necessarily if "illegal" refers to "the weight of jurisprudence," and not if abortion could be outlawed on grounds other than the personhood of the unborn (which is quite possible, even apart from the muddle surrounding the term "personhood").

[al]

Victor,
Granted, but its equally assertable that late term pregnancies were understood to be prosecutable under the person of the fetus (for obvious reasons).

Which I think suffices to put the ball in Celine's court to demonstrate a concerted assumption against the personhood of all pre-born infants, which is what Roe holds.

[Celine]

al:

It matters not if abortion was against the criminal law before Roe v. Wade (which, as others have pointed out, it wasn't in many states anyway). For the purpose of interpreting the Constitution, it matters whether the unborn were regarded as persons protected by the Fourteen Amendment when it was enacted, and this not so.

[al]

If abortion was against the law in many states, which meant it was certainly quite possible many pre born infants were viewed by majorities as persons, then you have to provide some other evidence that the enactors of the 14th indended to exclude those recognized persons from the protections of the 14th. Which the manifest failure of the court to find any such thing until a century later strongly argues against.

[William Bloomfield]

Al said: "Please provide any evidence that the founders intended to exclude unborn persons from the blanket protections of the Constitution."

One piece of evidence is that the states passed laws prohibiting abortion. The states would not have needed to do this if it had been understand that the Constitution prohibited abortion.

[al]

William,
The State's passed laws prohibiting murder. But clearly the Constitution anticipates such laws under its framework

[al]

And if a class of people (an ethnic group, say) were selectively disinfranchised with respect to those laws, the Constitution would provide a remedy

[Celine]

Donald R. McClarey:

I said, "And none of the states that enacted abortion bans treated the unborn as 'persons' or 'individuals' under their criminal codes or constitutions."

You denied this. OK, so show me a pre-Roe state constitutional provision that regarded the unborn as a "person" under its terms. There is none.

Show me a pre-Roe criminal statute that punished killing an unborn child as a form of homicide, much less a statute that applied the same or even similar penalties for feticide as would be provided for killing born infant (as equal protection of law would ordinarily require if the fetus were understood as a "person").

Pre-Roe, the unborn were regarded as something more than mere objects, but a good deal less than full "persons" in the law. Civil law did not even provide a suit for wrongful death for killing the unborn unless, in some states, the child was "viable" (capable of live birth). Otherwise, the child would have to be born alive before any action would lie for injuries or death caused in utero.

Look, I'm all in favor of making abortion illegal. Let's just not pretend that the unborn were or are regarded as Constitutional "persons."

[al]

An 1859 AMA committee investigating
abortion stated in its conclusions that one reason for ...

"the frightful extent of [abortion in the US] is found in the grave defects of our laws, both common and statute, as regards the independent and actual existence of the child before birth, as a living being. These errors, which are sufficient in most instances to prevent conviction, are based, and only based, upon mistaken and exploded medical dogmas."

In the 20 years following this AMA report, aided by lobbying from the medical profession, 31 states passed or amended their laws on abortion to protect pre-term infants at all stages of gestation.

[Friendly Hand]

Like Roe, Buck v. Bell was an appalling decision that required bending the Constitution beyond the breaking point to imagine a "right" (the right of the "healthy" majority to sterilize the "genetically unfit") that happened to coincide with the elite consensus of the day.

Actually, Simon, as sj has pointed out, Justice Holmes's opinion in Buck v. Bell isn't an example of finding new rights. It's an example of the same kind of reasoning that most pro-life opponents of Roe v. Wade use to criticize Roe.

The usual presumption is that state governments may legislate with respect to the health, safety, welfare, and morals of the community unless the Constitution requires otherwise. Holmes merely wrote that there was nothing in the Constitution that prohibited the State's exercise of those powers with respect to sterilization.

In other words, Buck embodies the chief rationale opposing Roe: "Let the legislatures decide." If nothing in the Constitution speaks to the issue of abortion, most anti-Roe scholars would say, then a legislature may decide that a woman cannot have one. This is (essentially) the argument of the Chief Justice, Justice Scalia, and Justice Thomas. A woman's right to bodily integrity or reproductive choice, under this view, is not one that has foundation in the Constitution. It therefore cannot trump an otherwise permissible exercise of legislative authority.

However, by the same reasoning a legislature could decide that a woman must have an abortion. If there is no right to bodily integrity or reproductive choice, then there is nothing stopping the legislature from enacting that kind of statute (of course, it would be very unlikely politically). As sj said, positivism is a double edged sword.

There is no way to avoid that result unless you take the position that the word "person" in the 14th Amendment includes fetuses--a position that has no support in the original meaning or intent of the Amendment. So you too will have to invoke the "Living Constitution" to read the text expansively.

Don't feel bad. In constitutional law even "strict constructionists" can become creative to get the desired result.

[Christopher Fotos]

Al:

Civics 101: The Declaration of Independence is not a governing document in our system of jurisprudence. The reference was to the Constitution and whether the right to life was already in there.

Actually, I believe the Declaration is incorporated into the law of the land thanks to a reference in US Code. I'll check.

Incidentally, at a live chat at the Washington Post today, Sen. Santorum had the simple and true retort to much of Turley's objection:

Pasadena, Calif.: Senator Santorum,

Given the rich religious diversity in the country, do you feel it appropriate for the federal government to legislate strictly Christian morality?

Senator Rick Santorum: I think it is important that we have a debate in this country about what's right and what's wrong, and that is reflected in our laws. To suggest that a Christian world view should not be brought to the public square and debated for its merits in addressing the problems that confront this country would be a restriction of religious freedom, just as saying a secular world view should not be able to come to the public square with their answers for the problems that confront America. The founders believed in a vibrant debate in America where everyone's opinion would come into the halls of Congress through their elected representatives and they would decide what's in the best interests of America irrespective of whether they happened to agree with a particular faith. They were very insistent that people of faith should have the opportunity to express their world view and influence the debate in this country. And I agree.

[Victor Morton]

However, by the same reasoning a legislature could decide that a woman must have an abortion.

"A woman" ... no. A class of women (such as ... well, wards of the state) ... yes.

The US Constitution does not mandate good or wise government or any particular social policy. That's why it has lasted.

[Christopher Fotos]

I leave this for others to pursue if they wish: A discussion--The Declaration of Independence is law. It is included with the U.S. Civil Code -- though not in the body. It is described, in its inclusion, as one of the Organic Laws. What this actually means in practice is the stuff of debates. But clearly the Declaration is not merely some free-floating historical curiosity. In terms of the Constitution, think of it as the prime mover.

[Mike Petrik]

Judge Friendly's analysis seems pretty persuasive to me. Indeed, I have never understood the Constitution as prohibiting murder by private parties (as opposed to murder by agents of government) or requiring states to do so. Presumably, natural law advocates would twist the Constitution to create such a prohibition, though I find their reasoning unpersuasive. Often the Declaration is cited as a warrant for Natural Law, but the Declaration was never adopted by our government. Moreover, it was written as a brief, or indictment, not as a set of binding rules.
Leaving aside the critical fact that Natural Law simply is not part of our system of justice (other than the extent to which the body politic rightly seeks to make our positive laws reflective of and consistent with Natural Law), we are left with an important prudential question: who is the better party to determine law, the legislative branch or the judicial branch? Either carries risks. The legislature fails in its task when it passes a positive law that contravenes natural law. An example is the law that was at issue in Buck v. Bell. The judicial branch fails when it disregards positive law that is reflective of Natural Law in favor of imposing a mistaken or perverted version of natural law as it understands it. See, e.g., Dred Scott and Roe. I prefer to trust the legislature. We the people can readily correct the errors of our elected representatives. In contrast, judicial errors made under the auspices of the Constitution are very difficult to correct. Dred Scott required a war and a Constitutional Amendment. Roe is still very much a work in progress.

[Donald R. McClarey]

"You denied this. OK, so show me a pre-Roe state constitutional provision that regarded the unborn as a "person" under its terms. There is none."

Uh, uh Celine, no fair in attempting to move the goal post. No such constitutional provisions were in effect, because they weren't necessary. The law assumed that unborn children were persons and not things, as I have demonstrated. As scientific knowledge advanced in the nineteenth century, and the old quickening notion was discovered to be erroneous, abortion was rapidly criminalized in all the states. The first states to partially allow abortion didn't do so until 1967. Outside the context of abortion the law has always assumed that the unborn are persons and still does so today. The anomaly is the area of abortion where these legal persons suddenly become things.

[Ken Crawford]

Celine, although Al hasn't made the best argument, he is indeed right that the burden of proof is on those who defend Roe vs. Wade as correct law and here is why:

The federal government must have a reason to interfere with state law. There must be proof that what the state is enacting is contrary to the federal constitution.

So in this case the Supreme Court ruled that the constitution states (implicitely or otherwise) that states regulating abortions is illegal in the federal constitution. That statement makes it obvious (to me at least) that the burden of proof is on those who suggest the constitution disallows state regulation of abortions.

[Dennis]

Celine - Whether the Framers of the Constitution or the drafters of the 14th Amendment specifically intended to include unborn children as "persons" is irrelevant. It is not their "intent" that matters, but the proper meaning of the words they used. All human beings are "persons", although not all "persons" are human beings (corporations, for example, are legal "persons"). Unborn children are human beings in their earliest stages of development. As such, they are "persons" and are entitled to all the legal and constitutional rights and protections given to all "persons".

The pro-abortion position (as well as that of pro-euthanasia movements, etc.), on the other hand, is premised upon the notion that some human beings can be deemed "non-persons". One doesn't have to look far back in history to see what kind of barbarities result from this notion (perhaps the phrase "lebensunwertes leben" will ring a bell).

As for Roberts, I find his statement rather odd. I'd be interested in knowing what specific kinds of cases or issues could arise that he would feel the need to recuse himself from. I could see his argument making sense for a lower court judge: for example, a Circuit or District court judge recusing himself from abortion-related cases because his perveived duty as a lower court judge to implement the Supreme Court's current pro-abortion-related holdings would, for example, conflict with his relgious beliefs (although I reject the notion, pressed ad nauseum by the pro-abortion side, that opposition to abortion can only be grounded in religious "belief" and thus constitutes the "forcing" of one's "beliefs" on others). But, as a prospective Supreme Court justice, he and his colleagues, for better or worse, are the one's who rule on just what the law is and what the Constitution means. How then, could he, as a Supreme Court justice, be forced to be complicit in upholding any law or Constitutional principle that conflicted fundamentally with his being a Catholic? Wouldn't this be tantamount to saying that the Constitution - or aspects of it - is intrinsically anti-Catholic, or perhaps at least un-Catholic? Clearly the Constitution a Supreme Court justice is sworn to uphold could be interpreted (whether or not legitmately so is a different matter) in ways that fundamentally conflict with Catholicism, but I don't see how one could argue that the Constitution must be interpreted in such a way.

[Mike Petrik]

Dennis,
A Supreme Court Justice could encounter a statute that is incompatable with Natural Law but not unconstitutional. Depending on the particular facts and circumstances, a proper ruling of constitutionality could in such a case conceivably constitute a material cooperation with evil.

[Celine]

It seems that al and Donald R. McClarey are in conflict, and the result is to prove my point. al quotes the AMA in 1859 to the effect that states did not then recognize the unborn child as even a "living being," contradicting Donald, who claims that state and federal constitutions always assumed that they were "persons." al's own quote demonstrates that the states at the time the Fourteenth Amendment was being enacted did not believe that the Amendment protected the unborn as "persons" -- state statutes had to be separately enacted to prevent abortions.

[Dennis]

Mike - That makes sense in the abstract, but I'm having a hard time coming up with an example of a statute, or particular facts or circumstances of a case, that could be so contrary to Natural Law as to constitute "material cooperation with evil," while at the same time also being constitutional.

Ultimately, your response raises another more fundamental issue: What is the proper role of Natural Law in interpreting the Constitution?

If a statute so transgresses the Natural Law as to constitute "material cooperation with evil", then such a law - and any Constitutional provision allowing it - should be considered Null and Void - a "lawless law" having no legitimate effect - on that basis alone. Though the Constitution is the "Highest Law of the Land", it is not higher than the Natural Law itself, and like all human laws and statutes it must answer to that Higher Law. The Constitution and all other positive law must be interpreted in such a way as to not transgress the Natural Law. Where positive law and Justice risk colliding, positive law must yield.

Thus, in the example you give of a statue that violates the Natural Law, yet not the Constitution, one could argue that a Supreme Court justice should not recuse himself to avoid having to enforce an unjust law, but should, precisely on Natural Law grounds, find that the Constitutional provision allowing such a manifestly unjust law is - at least insofar as that unjust law or the particular case before the court is concerned - a legal nullity.

[Victor Morton]

Dennis:

In the federal Constitution that exists, yes it's hard to come up with provisions that directly violate natural law, e.g., Thomas’ example of idol worship as a law that must be resisted. But that's because it contains few specific requirements (the ones related to slavery are obviously superceded, but even they didn't create a right to own slaves per se, the error of the Dred Scott case).

I may be wrong here because state constitutions are more numerous, more detailed, lengthier and more in flux. So it's hard for a non-lawyer like myself to be sure. But it would not surprise me if there is one somewhere (or perhaps more realistically a city's founding charter) that specifically anathematizes discrimination against homosexuals or in some other way declares homosexual behavior to be a protected right that shall not be abridged, like speech or the free exercise of religion.

[Donald R. McClarey]

"It seems that al and Donald R. McClarey are in conflict, and the result is to prove my point. al quotes the AMA in 1859 to the effect that states did not then recognize the unborn child as even a "living being," contradicting Donald, who claims that state and federal constitutions always assumed that they were "persons.""

Not at all Celine. If I may quote my earlier post. "The law assumed that unborn children were persons and not things, as I have demonstrated. As scientific knowledge advanced in the nineteenth century, and the old quickening notion was discovered to be erroneous, abortion was rapidly criminalized in all the states." Al is correct as to the criminalization of abortion in the nineteenth century. Both before and after, in all other contexts, the law assumed that the unborn were persons and not things.

[al]

Natural Law is the basis for all Human Law, acknowledged or not:Evangelium Vitae:

The basis of these values cannot be provisional and changeable "majority" opinions, but only the acknowledgment of an objective moral law which, as the "natural law" written in the human heart, is the obligatory point of reference for civil law itself. . . . Precisely for this reason, civil law must ensure that all members of society enjoy respect for certain fundamental rights which innately belong to the person, rights which every positive law must recognize and guarantee. First and fundamental among these is the inviolable right to life of every innocent human being. . . .72. The doctrine on the necessary conformity of civil law with the moral law is in continuity with the whole tradition of the Church. This is clear once more from John XXIII's Encyclical: "Authority is a postulate of the moral order and derives from God. Consequently, laws and decrees enacted in contravention of the moral order, and hence of the divine will, can have no binding force in conscience...; indeed, the passing of such laws undermines the very nature of authority and results in shameful abuse".95 This is the clear teaching of Saint Thomas Aquinas, who writes that "human law is law inasmuch as it is in conformity with right reason and thus derives from the eternal law. But when a law is contrary to reason, it is called an unjust law; but in this case it ceases to be a law and becomes instead an act of violence".96 And again: "Every law made by man can be called a law insofar as it derives from the natural law. But if it is somehow opposed to the natural law, then it is not really a law but rather a corruption of the law". . . .Consequently, a civil law authorizing abortion or euthanasia ceases by that very fact to be a true, morally binding civil law. . . . Christians, like all people of good will, are called upon under grave obligation of conscience not to cooperate formally in practices which, even if permitted by civil legislation, are contrary to God's law. Indeed, from the moral standpoint, it is never licit to cooperate formally in evil. Such cooperation occurs when an action, either by its very nature or by the form it takes in a concrete situation, can be defined as a direct participation in an act against innocent human life or a sharing in the immoral intention of the person committing it. This cooperation can never be justified either by invoking respect for the freedom of others or by appealing to the fact that civil law permits it or requires it."97

Here's why:
CCC"1898 Every human community needs an authority to govern it.16 The foundation of such authority lies in human nature. It is necessary for the unity of the state. Its role is to ensure as far as possible the common good of the society.

1899 The authority required by the moral order derives from God: "Let every person be subject to the governing authorities. For there is no authority except from God, and those that exist have been instituted by God. Therefore he who resists the authorities resists what God has appointed, and those who resist will incur judgment."17

1900 The duty of obedience requires all to give due honor to authority and to treat those who are charged to exercise it with respect, and, insofar as it is deserved, with gratitude and good-will. "

[Joseph]

I don't know Turley (and I could care less!) All this stuff about not letting one's religious faith influence one's judicial decisions is bunk. Surely religious views of some kind played a role in the Court decision allowing abortion on demand. As for the Declaration of Independence, our courts may not cite it as justification/reason for rulings one way or the other. Its reference to "life, liberty and the pursuit of happiness" has absolutely no weight in jurisprudence. If Roberts is confirmed, he would be perfectly within his rights as a justice to vote against upholding ROE. Perhaps in time the high court will overturn ROE and subsequent anti-life decisions and return the abortion issue to the states where it rightfully belongs (unless/until we can get a pro-life amendment to the US Constitution).