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?