St. Thomas Less?

In a lengthy comment thread over at Open Book we discussed (among other things) the Judge Roberts quote below, in which he says he had no personal reason that would prevent him from enforcing Roe vs. Wade as an appellate judge.

But since Roe vs. Wade violates the natural law, anyone and everyone should have a problem personally enforcing it, in any role whatsoever, including and especially in the role of appellate judge.

Many who are knowledgeable of the legal system seem to assume that in saying so, I have misunderstood how our legal system is supposed to work. I don’t mind the assumption, because upon encountering a clown named Zippy on the Internet it is natural to assume ignorance. But that isn’t the case here.

The blind assertion continues to be repeated that a judge has a duty – that is, he morally must – enforce the positive law “no matter what he personally thinks.” The “personally” is tossed in there, as near as I can tell, to provide the judge with an excuse to avoid making judgements about conflict between the natural law and positive law.

It is worth noting that there is no statute and no Constitutional provision – that is, no positive law – which requires legal positivism; and that in the Anglo-American legal tradition, positivism is a relatively new novelty. Blackstone says:

“This law of nature, being co-eval with mankind and dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe, in all countries, and at all times: no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force, and all their authority, mediately or immediately, from this original.”

The idea seems to be that in the present environment, where the mainstream choices are between legal positivism and the postmodern “emanations and penumbras” of the modern Court, Catholic lawyers and judges are called to be functionaries, not heroes. They are called to formally cooperate with evil: to have “no personal problem” enforcing Roe vs. Wade in certain functionary roles in order to maintain an (at least locally) consistent legal positivism and a political viability for higher office.

But nobody is ever called to formally cooperate with evil. It seems to me that sometimes the line that marks the minimum moral requirements is the same line that marks personal heroism. And it doesn’t surprise me in the least that choosing the profession of which St. Thomas More is the patron saint would often require at least some degree of personal heroism just to do the minimally right thing.

Saying that you would enforce Roe vs. Wade in certain functionary roles because doing so would be the right thing to do seems to me to be formal cooperation with evil. There are times when it is licit for a Catholic to cooperate with evil materially; but it is never, ever licit under any circumstances to cooperate with evil formally.

Is the bottom line that it is impossible to support Judge Roberts based on that single quote? Of course not. But it is wrong to support what he said as correct, because it is wrong to say that evil is good.

UPDATE: The Open Book thread continues here.

Nothing at all, eh Judge Roberts?

“Roe v. Wade is the settled law of the land. … it’s a little more than settled. It was reaffirmed in the face of a challenge … There’s nothing in my personal views that would prevent me from fully and faithfully applying that precedent,” Roberts said in response to a question from Sen. Richard Durbin, D-Ill.

[…]

Roberts, a practicing Catholic, lives with his lawyer wife and their two children in Bethesda, Md.

(Italics added).

Promotion of Universal Cannibalism

Instead of calling it the Culture of Death maybe we ought to call it the Culture of Cannibalism. What else do you call a society that forces its living young to consume the flesh of its murdered young?

Here is the actual list of vaccines derived from aborted children:

A) Live vaccines against rubella:

– the monovalent vaccines against rubella Meruvax®!! (Merck) (U.S.), Rudivax® (Sanofi Pasteur, Fr.), and Ervevax® (RA 27/3) (GlaxoSmithKline, Belgium);

– the combined vaccine MR against rubella and measles, commercialized with the name of M-R-VAX® (Merck, US) and Rudi-Rouvax® (AVP, France);

– the combined vaccine against rubella and mumps marketed under the name of Biavax®!! (Merck, U.S.),

– the combined vaccine MMR (measles, mumps, rubella) against rubella, mumps and measles, marketed under the name of M-M-R® II (Merck, US), R.O.R.®,Trimovax® (Sanofi Pasteur, Fr.), and Priorix® (GlaxoSmithKline UK).

B) Other vaccines, also prepared using human cell lines from aborted foetuses:

– two vaccines against hepatitis A, one produced by Merck (VAQTA), the other one produced by GlaxoSmithKline (HAVRIX), both of them being prepared using MRC-5;

– one vaccine against chicken pox, Varivax®, produced by Merck using WI-38 and MRC-5;

– one vaccine against poliomyelitis, the inactivated polio virus vaccine Poliovax® (Aventis-Pasteur, Fr.) using MRC-5;

– one vaccine against rabies, Imovax®, produced by Aventis Pasteur, harvested from infected human diploid cells, MRC-5 strain;

– one vaccine against smallpox, AC AM 1000, prepared by Acambis using MRC-5, still on trial.

Natural Law in Harry Potter

The Rite to Remain Silent

The alternative to the easy way is the hard way.

I am fortunate enough to regularly attend a reverent, orthodox Mass. It is a novus ordo Mass said partly in latin and partly in english. The consecration is in latin: no worries about the translation of “pro multis” there, because it isn’t translated. I have been to a Tridentine Mass before, and it was also fabulously beautiful. There is nothing quite like the sound of the chanted Kyrie and the smell of incense, the bells and the communion rail. The aesthetic experience of Mass that I have been granted in recent years is a blessing piled upon blessings.

When I travel I almost invariably find myself at a Mass that is clearly lesser in its externals. The music usually involves a guitar, an instrument I love in general but I detest in that setting. The homily is almost always about affirming us in our okayness, yes Jesus loves us and we all need to be good tolerant nice people. The penitential rite is usually so brief that if you cough you will miss it, and sometimes it is missing entirely. (I expect that the Mass is valid but illicit with the penitential rite missing, but these are not the sorts of things I worry over when I am actually in Mass).

And the latter kind of Mass is mainly what I grew up with. I have always been Catholic, but not a particularly good Catholic, and I do wonder at times what influence the thin gruel of modern liturgy has had upon me, what unnecessary crosses I still bear because of my own choices to be sure, but choices made in a particular context.

But no matter how thin the liturgical externals may be – and it must be admitted that they can get very thin indeed – He is there. So the attitude I try to cultivate in myself, even when a priest with a pronounced lisp skips the penitential rite and tells us that we all have to be more tolerant, is one of gratitude.

It seems possible to me that the reason we have such thin gruel in our liturgical externals might be because we are ungrateful for what we have. Maybe the “isn’t that nice, aren’t we wonderful” overtly narcissistic Masses are a penance for our ingratitude. For me a Mass which skips the penitential rite becomes a penitential rite in its entiriety, a reinforcement of the fact that we have been ungrateful for what we have in the Church, and that we deserve no better. We hear the stories about how in the old Mass many of the lay people would ignore what was going on completely and engage in private devotions. And I wonder whether things would have been really different for me had I been brought up in that liturgical setting. Perhaps, but perhaps not: perhaps the flaws in me as a modern person cannot be papered over by liturgy.

Perhaps it isn’t as much that the new Mass is uniquely suited to the modern world as that the new Mass is all that the modern world deserves, really more than it deserves. We are ingrates who do not appreciate the gift of the Eucharist; and the alternative to a voiced penitential rite is a lived penitential life.

So when I attend Mass at the church of isn’t that nice, aren’t we wonderful I try to make a point of it to go up to the celebrant after Mass and thank him for bringing us the Blessed Sacrament.

Judgeophrenia or Schizojudiciary?

In arguing against the natural law trumping positive law, as part of the ongoing right-liberal blogosphere apologia for presumptive pro-choice supreme court nominee Alberto Gonzales, Rob Vischer at Mirror of Justice says the following:

I’m fairly confident that Gonzales was not speaking of mere “technical points of law” (whatever those are), but of a judge’s responsibility to uphold settled legal principles, regardless of how distasteful he finds them.

It seems to me that there is an equivocation going on here. The presumption is that a judge is perfectly capable of making a dispassionate, objective judgement when it comes to positive law (“uphold[ing] settled legal principles”) but that this same judge in this same moment is incapable of objectively making a judgement about natural law, since the natural law is reduced to something the judge finds “distasteful”.

So in the modern legal order we are presumed to have schizophrenic judges who on the one hand are perfectly capable of making a dispassionate, objective judgement; but on the other hand and in the same moment are incapable of making a dispassionate, objective judgement.

Error, Legitimacy, Repentance, Oh My

I’ve seen many Americanists claim that rejecting or invalidating something in the US constitution would make America illegitimate, by which they seem to mean that America would no longer be a country and we would no longer be subject to Her laws. That is a bunch of hooey. Being wrong about something doesn’t make America illegitimate any more than being sinful makes someone no longer human, or being sinful makes the Pope no longer the Pope. The truth is a much more uncomfortable truth, the sort of truth the modern post-protestant mind doesn’t want to face. A sinful person doesn’t become a non-person: he acquires an obligation to repent. A polity that has set its positive law against the natural law doesn’t become a non-polity: it acquires an obligation to repent. And an obligation on the part of a sovereign to repent does not remove your obligation to obey him, inasmuch as his specific commands do not violate the natural law.

Why does this matter? Because even if none of the US constitution (properly construed) is in violation of the natural law at present the day may come when it will be. A constitutional amendment explicitly asserting a positive right to abortion, contraception, euthenasia, homosexual “marriage”, etc is not an impossibility. And in fact it is arguable – I should really say quite clear – that some state constitutions are in violation of the natural law right now.

But that doesn’t give you a license to violate the traffic laws of that state*.

* (Though it may limit your ability in good conscience to take a job working for the state, since many state jobs require an explicit oath to uphold the constitution of that state; and at some point it may make it, if it hasn’t already made it, impossible for an immigrant to take an oath of citizenship in good conscience).

Religious Liberty Hermeneutics

Personally I have no problem with the possibility that the first amendment as originally conceived or as currently constructed is in error. If it is in error then the natural law trumps it, end of story, just as the natural law would trump an amendment that granted a right to abortion.

I think the religious liberty teachings from Vatican II are mercies from the Mystical Body of Christ, hermeneutical gifts of mercy to the modern world. The Church has always and everywhere dogmatically taught against conversion by the sword. The religious liberty teachings provide a way for modern polities to interpret their positive law on religious liberty in such a way as to make it consonant with natural law, as opposed to interpreting it in the positivist manner that has been explicitly condemned by the Church. (One reason it has been explicitly condemned by the Church is that it is irrational, so attempting to construct an order based on it will result in the emancipation of the unbridled will and ultimately tyranny, evil, and both spiritual and temporal violence).

When faced with positive law claiming a “right to religious liberty” there are two options. If the hermeneutic used to interpret that law results in a contradiction with natural law – that is, if it results in the positive embrace of religious indifferentism – then we have all the chaos, the evil and violence of the triumph of the unfettered will, that result from embracing a contradiction as if it were truth. If a hermeneutic that allows the positive law to remain consonant with natural law is possible, though, then surely it is better to embrace it rather than creating a situation of moral chaos and violence. At least it seems so prudentially to me.

Sola Constitution

Conservatives tend to think that getting back to the text of the constitution will make things in our legal regime better: that some form of positivist constitutional originalism will save the day. This impulse is as laudable and yet as much in error as Protestant attempts to get back to the original Church through positivist Bible originalism.

In a lengthy comment thread over at Open Book, a commenter says the following:

I definitely don’t want judges deciding cases on their understanding of natural law. That gives far too much power to judges as the Framers would have understood. Finally, even if the Constitution could be understood as leaving room for natural law interpretivism, your position would still require that Constitutional provisions that are inconsistent with natural law be disregarded. Thus, the Consistution is not the law of the land, but whatever a judge says is natural law is.

The tremendous irony here is that the opposite is the case. Positivism in religion – sola scriptura – has resulted in religion being whatever the individual interpreting the Bible says it is. It has resulted in more than ten thousand different Christian or pseudo-Christian religions. And positivism in law has the same effect. What many conservatives don’t appreciate is that positivism and postmodernism are not opposed to each other but are directly connected faces of the same underlying basic irrationality; an irrationality that results in license to ignore the natural law.

I empathize with originalist positivism as the impulse to put a check on judicial power; but in fact it has the exact opposite effect. Just as Scriptural positivism emancipates the “believer” to construct whatever religion he wants, so legal positivism emancipates the judge to construct whatever law he wants.

In other words, whether this is immediately intuitive or not, failure to embrace constitutional positivism does not rob the constitution of all meaning. In fact, embracing constitutional positivism would rob the constitution of all meaning. Sola scriptura and sola constitution both arise from a desire to rigorously confine meaning to a text; and ironically, both ultimately rob the text in question of all meaning.

As long as the Right in America fails to understand this, and continues to reject the natural law in favor of textual positivism, it will continue to fail in its faux opposition to the excesses of modernism and postmodernism.

Note: post has been updated to clarify that the basic problem is textual positivism or the rejection of the precedent authority of natural law, not originalism-qua-originalism. HT to William Luse.