Scalia, Justice, and Morality

John Yoo, your comments yesterday provoke me to ask about remarks Justice Scalia gave recently, where he said “there’s no such thing as a Catholic judge.” I agree with him, and context is important.

He makes clear that the Constitution says nothing about abortion, and that, legally, under our constitution, the American people could vote for, or their elected representatives could pass, a law making abortion a right. On the Catholic left, they take that as an indictment that he is a positivist. It’s very silly. All he’s really saying is that judges do not have the authority to decide the morality of laws – they are deciding the constitutionality.

It’s the same thing he says on the death penalty. The idea that Scalia does not have strong feelings about abortion or the death penalty (though I think here he’s with me, that the morality does not prohibit capital punishment) is absurd. The reason this becomes an issue is the Democratic religious left, especially the Catholics. They’ve made their bed on abortion and can’t get out of it. Best they can do is say, “Scalia is as bad as we are – we’re bad on abortion and he’s bad on capital punishment.” Of course this fudges rather than makes important distinctions.

John, I assume you’ve experienced similar confusions on torture. First, that you were asked a legal and constitutional question and gave your answer. Again, the politics is similar here because the Catholic church teaches that (unlike the death penalty, but like abortion) torture is an intrinsic evil – ie., always wrong, never justified by circumstances. If you look at it more closely, however, the teaching is very very fuzzy. It says, “Torture which uses physical or moral violence to extract confessions, punish the guilty, frighten opponents, or satisfy hatred is contrary to respect for the person and for human dignity.” You will quickly see this says nothing about enhanced interrogation to extract information to save lives. In addition, if we are to say waterboarding is torture, and torture is an intrinsic evil (always and everywhere wrong), it would be an intrinsic evil to use it on our special forces the way we do for training.

To me it suggests that the aim here is not a moral debate on torture — which might be useful. It is to shout “torture” to discredit Bush and Republicans.

Isn’t there a similar question with law and morality – who makes the call, and how? President? Judge? Legislator? Citizen?

  1. John Yoo
    C

    Bill, I agree with your distinction between policy and law (and Scalia’s), but I can understand how some Catholics can confuse the issue. The job of a judge is different than that of a priest, though some on the Supreme Court do everything they can to blur the distinction. Scalia is a positivist as a judge. But that is entirely separate from how he would vote on the policy as a citizen or legislator. As a judge, his job is to identify the line between what the Constitution leaves to the democratic process and what it places beyond the simple majority’s powers. He may personally disagree with the policy — indeed, the mark of a good judge is that he will uphold laws that he finds disagreeable, immoral, or plain stupid, if the Constitution requires it. Or, as Justice Oliver Wendell Holmes once reportedly put it: “if my fellow citizens want to go to Hell I will help them. It’s my job.”

    So on abortion and the death penalty, as a matter of constitutional law, I believe he is consistent. The Constitution as originally understood left these matters up to the states and not the Bill of Rights or the Fourteenth Amendment. That means that there can be significant variation among states about policy — which, for other reasons, is a very good thing and a great source of American success. But as a voter, Justice Scalia or any of the other Catholic justices can against abortion and against the death penalty consistently with Catholic doctrine.

  2. John Yoo
    C

    Agreement with the Church on policy need not always the case. One of my favorite teachable moments is the gay rights cases. Justice Thomas agreed with Scalia in dissent that the Constitution did not protect the right to homosexual sodomy from state regulation. But then Thomas said he thought the law was a dumb idea and that he would have voted against it as a legislator.

    As you raise the issue, I think it is the same with the interrogation issue. The statute we faced back in the month after 9/11 prohibited torture but defined it in very ambiguous terms. It had never been interpreted by the courts or the government. We had to draw the line between what is legal and illegal that we thought best fit the law that Congress wrote. But that doesn’t tell the people with the hard jobs — the President and his national security council — what policies to choose within the area that is legal.

    As for the Church, and its current stand on the question, my sense is that Catholic thinking draws an important distinction between domestic law enforcement/government and war. I am confident you know much more about this than I, St. Thomas Aquinas’s thinking on the principle of “double effect,” and its later elaboration by Catholic thinkers on the laws of war, permitted some extreme acts in wartime (which we reject today) if the bad, secondary effect is not intended for its own sake but instead for a greater good. Otherwise, how could it be permissible under a strict reading of the New Testament for Christians to kill the enemy in any war, even those of self-defense?

  3. Tommy De Seno
    C
    John Yoo: As you raise the issue, I think it is the same with the interrogation issue. The statute we faced back in the month after 9/11 prohibited torture but defined it in very ambiguous terms. It had never been interpreted by the courts or the government. We had to draw the line between what is legal and illegal that we thought best fit the law that Congress wrote. But that doesn’t tell the people with the hard jobs — the President and his national security council — what policies to choose within the area that is legal.

    I wholeheartedly agree, Professor. During the thousands of conversations I watched on television over the last 8 years with pundits opining whether waterboarding is or isn’t legal, no one ever bothered to put the law up on the screen and take a look at it.

    I guess unsupported opinions screamed by the left make for better ratings than reading the law on camera.

  4. Ottoman Umpire

    The right, I think, prefers that moral assessments be left to the people. The people then elect representatives and a chief executive who are supposed to apply those sentiments to legislation and policy. This is predicated on the idea that virtually every law has a moral basis, with the possible exception of those that are purely procedural.

    The left, having found that its moral sentiments aren’t widely held, are left with little choice but to concentrate its moralizing to the judiciary (and the bumpers of Priuses).

  5. JACK

    I have to disagree some.

    Scalia is speaking specifically about the role of judges. Lawyers in an administration are not judges. Setting aside questions of the merits of Prof. Yoo’s legal arguments on the questions he faced, and with respect to his service (i.e., not trying to make this personal), I think it is not appropriate to apply Scalia’s argument to all lawyers. A lawyer’s primary responsibility is to deal with questions of law, yes, but more is expected from the profession. My clients would fire me if I merely reviewed each question on the basis of whether what they propose to do is within or outside the boundaries of what is legal. They expect, in my capacity as an advisor and counselor, my full judgment be brought to bear on what is prudent and makes good sense.

    I also think criticism can be brought against Scalia’s position. Constitutional questions are a small part of what a judge deals with. While we have become more statute-heavy, we are a common law tradition and do have principles of equity. Scalia’s view is also very dependent on his approach to textual interpretation.

  6. Patrick Shanahan

    Bill, you answer you question. “President? Judge? Legislator? Citizen?” Yes, in exact inverse order. Our form of social and governmental organization assumes (demands?) that the citizen must be the first moral decider. If we abdicate that role, then we are doomed. For those decision that can not be satisfactorily decided throuh individual give and take, we have our representatives hash them out. The problem comes when the Court tries to “solve” the big problems for us. That ain’t their job. But that is exactly the role that the left has foisted on it.

    And the President’s ONLY role should be to reflect a clear national mood via the Bully Pulpit.

  7. Tommy De Seno
    C

    He makes clear that the Constitution says nothing about abortion, and that, legally, under our constitution, the American people could vote for, or their elected representatives could pass, a law making abortion a right.

    Bill I didn’t see this in the article. Did Scalia say this somewhere else?

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