If I understand Douglas W. Kmiec's argument correctly...

... he is suggesting—in this February 20, 2009, piece for TIME magazine—that the Vatican's short statement about Pope Benedict XVI's fifteen-minute conversation with Speaker of the House Nancy Pelosi was a potentially radical intrusion into the juridical system of the United States:

What was quite surprising, and overlooked, had to do with a different branch of the U.S. government. If you read it carefully, the statement is actually quite radical — perhaps unintentionally so. The brief message — just two short paragraphs — draws no distinction between the moral duties of Catholic policymakers and Catholic judges to work against abortion.

As a lifelong Catholic, Pelosi could not feign surprise at being called upon by the Church to use her gift for persuasion to restrict abortion legislatively, or at least not to be its advocate. But until now, the Church had not formally instructed judges in a similar fashion. As written, the Pope's statement has the potential, at least theoretically, to empty the U.S. Supreme Court of all five of its Catholic jurists and perhaps all other Catholics who sit on the bench in the lower federal and state courts.

This doesn't make sense for a number of reasons, many of them spelled out by Fr. Z., who provides line-by-line commentary on Kmiec's piece. Fr. Z. points out that Kmiec appears to be misreading the term "jurist," which has a different meaning in the U.S. than it does in Europe. In the U.S. the term tends to be applied to judges, while in Europe it is used, generally speaking, in a much broader sense to refer to anyone with a degree in law—and not just lawyers, but also a legal assistant.

Even so—to my non-legally-trained/educated mind—Kmiec's aversion to judges who would take into consideration natural law and/or Church moral teaching is puzzling. What is most bothersome is Kmiec continues to act as though "Roe vs. Wade" is not only set in stone, it is nigh sacred. Yet it seems rather obvious that "Roe vs. Wade" is, according the Church's teachings, an unjust law:

398. Authority must enact just laws, that is, laws that correspond to the dignity of the human person and to what is required by right reason. “Human law is law insofar as it corresponds to right reason and therefore is derived from the eternal law. When, however, a law is contrary to reason, it is called an unjust law; in such a case it ceases to be law and becomes instead an act of violence”.[816] Authority that governs according to reason places citizens in a relationship not so much of subjection to another person as of obedience to the moral order and, therefore, to God himself who is its ultimate source.[817] Whoever refuses to obey an authority that is acting in accordance with the moral order “resists what God has appointed” (Rom 13:2).[818] Analogously, whenever public authority — which has its foundation in human nature and belongs to the order pre-ordained by God [819] — fails to seek the common good, it abandons its proper purpose and so delegitimizes itself.

c. The right to conscientious objection

399. Citizens are not obligated in conscience to follow the prescriptions of civil authorities if their precepts are contrary to the demands of the moral order, to the fundamental rights of persons or to the teachings of the Gospel.[820] Unjust laws pose dramatic problems of conscience for morally upright people: when they are called to cooperate in morally evil acts they must refuse.[821] Besides being a moral duty, such a refusal is also a basic human right which, precisely as such, civil law itself is obliged to recognize and protect. “Those who have recourse to conscientious objection must be protected not only from legal penalties but also from any negative effects on the legal, disciplinary, financial and professional plane”.[822]

It is a grave duty of conscience not to cooperate, not even formally, in practices which, although permitted by civil legislation, are contrary to the Law of God. Such cooperation in fact can never be justified, not by invoking respect for the freedom of others nor by appealing to the fact that it is foreseen and required by civil law. No one can escape the moral responsibility for actions taken, and all will be judged by God himself based on this responsibility (cf. Rom 2:6; 14:12).

c. The right to resist

400. Recognizing that natural law is the basis for and places limits on positive law means admitting that it is legitimate to resist authority should it violate in a serious or repeated manner the essential principles of natural law. Saint Thomas Aquinas writes that “one is obliged to obey ... insofar as it is required by the order of justice”.[823] Natural law is therefore the basis of the right to resistance.

There can be many different concrete ways this right may be exercised; there are also many different ends that may be pursued. Resistance to authority is meant to attest to the validity of a different way of looking at things, whether the intent is to achieve partial change, for example, modifying certain laws, or to fight for a radical change in the situation. (Compendium of the Social Doctrine of the Church, pars 398-400)

By "modifying certain laws," I take the Compendium means exactly that: it is the right and duty of those who are able to (judges, lawyers, etc.) to work to modify and change unjust laws. This is completely in keeping with the short Vatican statement:

His Holiness took the opportunity to speak of the requirements of the natural moral law and the Church’s consistent teaching on the dignity of human life from conception to natural death which enjoin all Catholics, and especially legislators, jurists and those responsible for the common good of society, to work in cooperation with all men and women of good will in creating a just system of laws capable of protecting human life at all stages of its development.”

In other words: nothing new here! Yet Kmiec concludes his piece by saying, "Few are pleased with the abortion jurisprudence as it is. But imposing moral duties on Catholic jurists that are incompatible with their envisioned judicial role in a democracy is hardly likely to make it better." But this blithely sidesteps at least three facts: (1) that "Roe vs. Wade", to take the most obvious example, was far more than interpretative in nature, it was aggressively activist (something that even some "pro-choice" folks admit), (2) that is it not unusual for laws to be overturned or modifed, either by juridical or legislative action, and (3) that laws (to reiterate) are only as good as they adhere to the eternal, objective moral law established by God:

136. Freedom is not contrary to man's dependence as a creature on God[257]. Revelation teaches that the power to decide good and evil does not belong to man but to God alone (cf. Gen 2:16-17). “Man is certainly free, inasmuch as he can understand and accept God's commands. And he possesses an extremely far-reaching freedom, since he can eat ‘of every tree of the garden'. But his freedom is not unlimited: it must halt before the ‘tree of the knowledge of good and evil', for it is called to accept the moral law given by God. In fact, human freedom finds its authentic and complete fulfilment precisely in the acceptance of that law”[258].

137. The proper exercise of personal freedom requires specific conditions of an economic, social, juridic, political and cultural order that “are too often disregarded or violated. Such situations of blindness and injustice injure the moral life and involve the strong as well as the weak in the temptation to sin against charity. By deviating from the moral law man violates his own freedom, becomes imprisoned within himself, disrupts neighbourly fellowship and rebels against divine truth”[259]. Removing injustices promotes human freedom and dignity: nonetheless, “the first thing to be done is to appeal to the spiritual and moral capacities of the individual and to the permanent need for inner conversion, if one is to achieve the economic and social changes that will truly be at the service of man”[260]. (Compendium, pars. 136-7).

The question for Kmiec and all Catholic is quite simple: is your loyalty and fidelity owed first to the moral law of God (which can be known by natural reason) or to the human laws of the U.S. Supreme Court, the lower federal courts, and the state courts—which should be based upon the moral law, but aren't always (as we well know)?

• "Big Questions and Deceptions" by W. James Antle, III (Catholic World Report, February 2009)
• Why the Bewilderment? Benedict XVI on Natural Law | Fr. James V. Schall, S.J. (Ignatius Insight, October 2007)
• Pope Benedict XVI On Natural Law | Fr. James V. Schall, S.J. (Ignatius Insight, March 2007)
• Secularity: On Benedict XVI and the Role of Religion in Society | Fr. James V. Schall, S.J. (Ignatius Insight, January 2007)

Comments

[Matthew]

I certainly agree with your judgment on this matter as things stand now, but there are surely legitimate concerns for a federal judge who happens to be a faithful Catholic. Suppose, contrary to fact, that Roe v. Wade was in fact a reasonable reading of the Constitution, or even the only reasonable reading of the Constitution. A Catholic judge would then have two choices: to make a ruling that has results he finds morally abhorrent, or to leave the judiciary. Again, this choice does not present itself as things stand, but we can imagine it happening in this case, and perhaps it happens in some actual cases. So I suspect there is a real issue here, even if Mr. Kmiec has not correctly identified it.

[T. Shaw]

So-called Catholic intellectual provides cover for abortion and socialist demagogues.

"If you don't read the papers you are uninformed. If you read the papers you are misinformed." Twain.

Truth: I've been in banking/financial analysis for 32 years. Everything you read or hear from the MSM re: foreclosures, recession, etc. is so far wrong it lacks link to truth that is found in the common lie. Rick Santelli is the only talking head that has said anything near helpful.

This from a self-satisfied non-intellectual: Kmiec (good-for-nothing intellectual flotsam with tenure) believes stuff (apologies to Orwell) that is so stupid that only an intellectual could believe.

He seems to believe that we will be judged on our tacit support of mass, societal evil if, and only if, we are not "covered" by a dishonest, mass murder court ruling. I bet he also believes SS concentration camp guards "I was following orders" are in heaven, too.

A potential "issue" with Pope Pius XII would be whether he did not "radically intrude in the political processes" of several Catholic countries in the 1930's and 1940's. And, alot of US bishops . . .

Kmiec proves himself almost as morally bankrupt as is Pelosi and the rest of the idiots in congress. But (sputter), but (sputter) . . . our inexperienced, socialist racial agitator said he was anti-death penalty, against war, opposed torture and would steal from the rich to give free health, free lunch to the poor. And, (they beleive) he would destroy the unjust private sector economy and end racism. And, and that trumped the murders of 45,000,000 unborn . . .

And, Time pays Kmiec to write 1,000 words to try to "square" abortion and concomitantly all socialist/humanist/progressive/socialist mass brigandage with the Gospels and the Ten Commandments.

[Dan Deeny]

Carl, Thank you for this detailed analysis of Prof. Kmiec's problems. I guess Roger Taney had problems also. So did Franz von Papen. But Prof. Kmiec, savant et obligeant, marches on.

[LJ]

If it did come to a point where Scalia and other Catholics were morally forced to resign the bench, as Kmiec is suggesting, how is that unlike other times in history when in conscience Christians have been forced to disengage from unjust government?

There is a cost, occasionally, for being a Christian, and a cursory knowledge of history surely should make us all aware that it can happen anywhere. The hardest part I think, is being able to recognize that world as it develops around us, and knowing when and where to draw the line, even if it means giving up hope to press our cause in the immediate term because of the compromise we must make to do so.

If we find ourselves in the Titanic with only a tin can, how long to we keep on bailing out the water before we grab for something that floats? Or, to use another analogy is there such a thing as Christian political and social Tai Che, wherein we sidestep to avoid being flattened by the momentum of evil?
Just asking.

[Ben]

I think Kmiec has a point - about Scalia. How does Scalia turn himself into a pretzel and hide behind American jurisprudence, when, as a Catholic, he knows what the deal is.

This is the fruits of the "legitimate autonomy of the secular" that Catholics, you included Carl, are so fond of repeating. And now that it's been in practice for a few decades, it's showing its true colors. They don't look so good, do they?

[Carl Olson]

Ben: Perhaps someone with more knowledge of Scalia's comments and positions can shed some light on that aspect of Kmiec's column. As for your comment about "legitimate autonomy," it misrepresents what the Church actually teaches about the issue. For example:

571. The political commitment of Catholics is often placed in the context of the “autonomy” of the State, that is, the distinction between the political and religious spheres[1194]. This distinction “is a value that has been attained and recognized by the Catholic Church and belongs to the inheritance of contemporary civilization”[1195]. Catholic moral doctrine, however, clearly rejects the prospects of an autonomy that is understood as independence from the moral law: “Such ‘autonomy' refers first of all to the attitude of the person who respects the truths that derive from natural knowledge regarding man's life in society, even if such truths may also be taught by a specific religion, because truth is one”[1196]. A sincere quest for the truth, using legitimate means to promote and defend the moral truths concerning social life — justice, freedom, respect for life and for other human rights — is a right and duty of all members of a social and political community.

When the Church's Magisterium intervenes in issues concerning social and political life, it does not fail to observe the requirements of a correctly understood autonomy, for “the Church's Magisterium does not wish to exercise political power or eliminate the freedom of opinion of Catholics regarding contingent questions. Instead, it intends — as is its proper function — to instruct and illuminate the consciences of the faithful, particularly those involved in political life, so that their actions may always serve the integral promotion of the human person and the common good. The social doctrine of the Church is not an intrusion into the government of individual countries. It is a question of the lay Catholic's duty to be morally coherent, found within one's conscience, which is one and indivisible”[1197]. (Compendium of the Social Doctrine of the Church, par 571; also see pars 45-46)

The various social and political ills of the past 40-50 years are not due to a recognition of this legitimate autonomy, but rather the rejection (on the part of both many non-Catholics and many Catholics) of the legitimate place of the natural and moral laws.

[Dan]

It is interesting that Professor Kmiec not only adopts as an intellectual matter the Mario Cuomo understanding of what it means to be pro-life, but also seems interested in undermining the Pope at every opportunity when the issue is abortion.