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The Dogma Lives Loudly Within Me
Amy Coney Barrett.
Like Justice Amy Coney Barrett, I’m a believing and practicing Catholic. I’m even one of those “extreme” Catholics who adheres with all her heart and mind to every jot and tittle of the Church’s teaching. Truly, (if weirdly) Diane Feinstein could say of me: “the dogma lives loudly within her.”
I hold (and am prepared to argue the point on philosophical grounds, in case anyone wants to take it up with me) that abortion is absolutely immoral. It’s never okay to directly intend the killing of an innocent human being, even if that being was conceived through an act of violence. (I hold with the Church that an “abortion” to save the life of the mother is sometimes licit, depending on the circumstances of the case.)
I also hold, as a matter of both faith and moral philosophy, that unjust laws are not binding on the individual. If I were a doctor in, say, China, and my supervisor ordered me to carry out an abortion, I wouldn’t do it. I have an unalienable human right not to do what my conscience prohibits. I might have to go to jail, though, since the PTB in China have established unjust laws.
If I were a Quaker on the Underground Railroad in pre-Civil War Maryland and the local authorities ordered me to hand over a runaway slave I’m harboring, I wouldn’t do it (assuming God gives me the grace to live according to my convictions, despite the cost.) If I were a priest in Canada, and the local government ordered me to “marry” two men, I would say, “That’s a line I won’t cross” and also, “You are way out of bounds pretending to have that kind of authority over me and my Church.”
If I were a cop here in the US, I would not imagine that my pro-life convictions, loud as they are within me, give me the right to arrest someone for getting an abortion. I’m perfectly capable of recognizing the distinction between the meanings of “immoral” and “illegal.”
Personally, I’m opposed to the death penalty. I used to favor it, but Pope John Paul II’s great encyclical Evangelium Vitae changed my mind. (It’s not absolutely immoral, like abortion; it’s easy to imagine cases when it’s called for. But it’s generally a bad policy with bad social consequences.) So, as a private citizen, I advocate in the public square for the abolition of the death penalty. If it were the only thing at stake in a given vote, I’d vote against it.
If I were a Supreme Court Justice hearing a case challenging, say, Texas’ death penalty, though, I would be aware that my job is not to decide whether or not the death penalty is a good idea for Texas. That’s for the voters and lawmakers of Texas to decide. It would be for me to decide whether or not the Texas law is prohibited by the Constitution. If I were persuaded by the lawyers and my own reading of that document and relevant case law that it’s not, then I would have no difficulty finding in favor of Texas’s death penalty law.
If Roe v. Wade were before me, I expect I would vote to overturn it, not because I’m against abortion, but because the arguments underlying it are utterly specious. There is nothing whatsoever in the Constitution that prohibits states from making laws against abortion.
If a case like Obergefell were brought before me, I would understand that the question at issue is not whether or not I favor gay marriage, but whether or not a law defining marriage as between one man and one woman, or a law allowing a same sex couple to marry, is unconstitutional.
All this seems really clear and basic to me. Religion is one thing; jurisprudence is another.
If anyone can think of a concrete example, either historical or hypothetical, where my deep and loud adherence to Catholic dogma would conflict with my ability to do the job of a Supreme Court Justice, I’d be interested to hear it.
Published in General
Yeah, the difference is they are wrong about most things. ;)
Well then you don’t think they were justifications for a revolution. Just rhetoric. You fundamentally don’t believe in the Declaration.
No, you are just reading off different fortune cookies. Mike, you need some Scalia really bad:
The substance of today’s decree is not of immense personal importance to me. The law can recognize as marriage whatever sexual attachments and living arrangements it wishes, and can accord them favorable civil consequences, from tax treatment to rights of inheritance. Those civil consequences—and the public approval that conferring the name of marriage evidences—can perhaps have adverse social effects, but no more adverse than the effects of many other controversial laws. So it is not of special importance to me what the law says about marriage. It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact—and the furthest extension one can even imagine—of the Court’s claimed power to create “liberties” that the Constitution and its Amendments neglect to mention. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.
I don’t disagree, Stad. Politics is not moral philosophy. It’s “the art of the possible.” So, in a society where all abortion is legal, a person who thinks it’s absolutely immoral could support legislation that prohibits at least some of them.
Especially not life, liberty, and the persuit of happiness. That is why the USA is so unique. We valued these things and chose to codify them as legal rights. The preamble yo the constitution is a nice rally speech, but otherwise complete nonsense in that regard. Of course we don’t have those rights. Where would they come from? Tell Israel, during their years of slavery, that they have some sort of unalienable right to liberty. Try telling God that. Seems most of the OT is designed to pound into our heads the exact opposite. My paraphrase: “you ain’t got the unalienable right to jack squat. Your lives are a gift. Be thankful.”
Do I assert my preference for life, liberty, and the persuit of happiness? Of course I do. I highly value those things and I’ll fight for them. But not as a matter of right.
Hammer, this is borderline gibberish. Sorry. Inalienable doesn’t mean that these rights cannot be forcible taken and withheld from you, perhaps for centuries, but that they are your rightful possession as a human being. They are defining aspects of your humanity, to place the argument back into the “philosophical” context in which it started.
Your position is radically non-philosophical, relying on your preferences and values, not on any philosophical conception of the soul and human happiness, understood in the broad 18th century meaning.
Let’s consider these inalienable rights where they are most fully expressed, in Jefferson’s first draft:
Are these words true, in a deep philosophical way, for you? Do you believe that men are created equal in a fundamental way? That men and women have a right to live free from tyranny and oppression?
What do you base your values and preferences on Hammer?
Castigating others for not having a philosophic understanding of their beliefs might be something of a projection unless you can answer these questions?
I notice Mike said, “Like back in the days of common law.” Our written Constitution and many (too many) statutes doesn’t mean we aren’t the scion of a common-law country. The law our Founders knew was common law, a conservative form of judge-made law, emphasizing precedent and tradition. (The English Constitution is an unwritten tradition, a constitution “discovered” by the law rather than explicitly stated.)
Scalia wasn’t always fond of judicial precedent, but he recognized it had value, and he certainly valued tradition. Today’s judicial decision is tomorrow’s precedent: that’s how judicial tradition gets made.
I’m not a lawyer, but from what I understand, in many cases (perhaps most noticeably in cases involving emerging technology and intellectual property) judges must apply good moral reasoning in order to establish how existing law should address novelties.
For example, self-driving cars are a novelty. Some people claim self-driving cars are like horses, beings (albeit artificial, not natural beings) with a mind of their own that’s nonetheless responsive to human supervision.
If that analogy is a good one, then we can “augment the law” (Mike’s phrase) by applying the extensive tradition of law involving horses to self-driving cars. If the analogy is a bad one, though, augmenting the law in this way would be wrong, creating bad precedent and bad law.
Reasoning by analogy like this is a basic form of moral reasoning, much used in religion as well as law. Our Constitution doesn’t spell out rules for establishing what makes a good legal analogy, but it didn’t have to — that’s just basic moral philosophy, of the sort the Founders would have naturally taken for granted, no?
All of what I just said might seem to fall under the category of “so obvious it doesn’t need stating”, but I think that’s the sort of basic moral reasoning Mike is talking about when he mentions using moral philosophy in a common-law fashion. It’s not revolutionary, it’s evolutionary. And it’s pretty danged conservative.
If judges aren’t free to apply some pretty basic philosophical discretion, then every novel predicament would be an excuse to impose novel statutes, and that would be a regulatory nightmare, exactly the kind of infringement of liberty conservatives typically rail against.
Instead, conservatives mostly take it for granted that old law ought to apply to new things. Since some discretion is involved in figuring out the best (or at least a sufficiently unbad) application of traditional law, we do want judges to be free to exercise some discretion.
God wrote the software for horses. Men wrote (will write?) the software for self-driving cars.
Humans “write” some of the software for horses through selective breeding and training. That is, we mod the horse “software” so it better fits our purpose. The architect of a self-driving car isn’t exactly like a horse breeder or trainer, but there are similarities.
I’ll have to go soon, but perhaps when I have time, I’ll write a post on the kind of judicial discretion we seem to tacitly expect judges to have in the face of new technology. The self-driving-car-as-horse model at least has the potential to be entertaining.
I think breeding fiddles with the hardware, not the software.
Already there are hospitals run by Seventh Day Adventists. Luckily for me, the doctor their clinic assigned me believed that actual opioid meds were the best route for my pain.
When he went on sabbatical for six months, his replacement attempted to put me on a psych med, as it held no addiction properties according to her.
When I came home and search engined the possible side effects, they were half a page long. (And addiction was one of the side effects.) I went back to the clinic, was re-assigned doctors and went back on my regimen of vicodin, whose only side effects are nausea in some people and addiction. (Used it for 35 years – often quit cold turkey the moment my back readjusts. From 2 pills a day to zip, and don’t think twice about it.)
Another problem with the Seventh Day Adventists – I once made the mistake of mentioning I occasionally drink. Rather than have a meaningful doctor visit, the person who saw me grilled me about my alcohol use. So I pay $ 180 bucks mainly to discuss a problem I don’t have, and got short shift over the problems I was there to discuss.
As someone who nearly died from a hospital’s failure to admit me when I was hemorrhaging from a miscarriage, due to the hospital staff fearing that if they were admitting a possible self administered abortion patient they would lose their license, I will never stand for any laws that interfere with the proper overall administration of medicine for a woman. The irony in all this is as the years have gone by, I realize that more than likely it was my heavy consumption of second hand smoke in an accounting office that probably caused the miscarriage. But we all know how older Republicans held on to the belief that if they want to smoke, the damn liberals should not interfere with their right to do as they wish to do!
I see what you mean: breeding physically modifies the horse. Still, breeders can and do breed for behavioral traits, and it seems reasonable to liken the horse’s behavior to the “software” it’s running. It’s true that a machine can only be programmed to behave in ways its hardware leaves it physically capable of behaving, so machine behavior isn’t just “software”, either. But when deranged machine behavior has no obvious physical cause, we tend to think “software problems”. Not always accurate — the first computer bug was a literal insect — but “software” has become slang for traits that don’t seem physically fixed.
You’re right that these matters of terminology would have be to addressed better if judges were to apply laws concerning animals to machines that “think for themselves” in some capacity. Judges dickering over which parts of a horse are “hardware” and which are “software” would probably seem faintly ridiculous to outsiders. This kind of dickering seems to be part of what judges do, though. And I think it’s a fitting part of what they do.
I regret that I have but one “like” to give to this comment.
Agreed. I would happily vote for a law banning abortion with an exception for rape and incest. Then, as soon as it passed, I would turn around and start campaigning for another law eliminating the exception.
This is something the left understands better that most conservatives, for some reason. In politics, making the perfect the enemy of the good is usually self-defeating. You take what you can get, then regroup and push on to the next milestone.
Your homework assignment: read the Declaration again. It answers that question quite clearly.
Correct, our lives and our rights are a precious gift from God, to whom we ought to be thankful. They are inalienable in the sense that no mere mortal can revoke or override what God has decreed. Those who violate inalienable rights will, ultimately, answer to God for their transgressions.
This is quite different from the philosophy that asserts that all rights are granted by the beneficence of our Dear Leaders, and that we owe gratitude to them rather than to the true author of our rights.
Perhaps breeding also fiddles with the firmware.
Midge, some reasoning and discretion, yes, for exactly the kind of situations you mention. But that would be a matter of drawing out the implications of what’s given in the Constitution and relevant case history, rather than judging according to my own personal ideas of right and wrong.
And we have the example of President Lincoln who opposed slavery but believed neither he, nor Congress, had any authority under the Constitution to interfere with it in the states where it existed. The only route to deal with the Fugitive Slave Act was through repeal of the legislation by Congress, not action by the Courts.
A right to these things? No, I don’t really believe that. I think that others lack the right to enslave, etc… and that it’s not quite the same thing. I don’t dislike the declaration, but I’m not sure I agree with it, either.
I’m not castigating anyone for anything.
That’s exactly right, which is why the exception clause is a tough one for people of convition to accept. However, I don’t see any way around putting more restrictive laws in place without it.
There is still the task of convincing hearts and minds of the right thing to do, which has been successful over the years in spite of Roe v. Wade.
A wonderfully clarifying essay. I confess I read the whole thing, and some of the comments before I realized our great katievs had written it:
*I’m perfectly capable of recognizing the distinction between the meanings of “immoral” and “illegal.”*
Exactly.
Quake Voter’s Scalia is pure gold.