Absolution by Positivist Political Theory
October 11, 2007 § Leave a comment
The more I reflect on this debate it seems that our responses will be shaped by our own theories of government. Those of us who believe that Supreme Court Justices ought to interpret the Constitution according to an originalist understanding, AND that legislators ought to be Burkean agents that vote based on their own personal deliberation might argue that legislators are freer to act and as such more susceptible to being denied the sacraments.
I tend to think – that is to say, I assert vehemently – that positivist theories of constrained action are not exculpatory: that a politician is not licensed to do wrong simply because his theory of government, if he adheres to it in a particular case or on a particular question, constrains him to a choice of evils.
This, in addition to my own natural law understanding of politics, is why I think there is no excuse for Judge Roberts’ declaration during his appellate confirmation hearing that Roe vs Wade is “settled law” and that “[t]here’s nothing in [his] personal views that would prevent [him] from fully and faithfully applying that precedent.” Those who attempt to justify that statement attempt to do so on the basis of an appeal to political theory. But no appeal to political theory can justify formal cooperation with evil, and expressing an intention to fully and faithfully enforce Roe is formal cooperation with evil.
“Personally opposed, but…” is never exculpatory. Don’t even start.