Copyright (c) 1992 First Things 20 (February 1992): 18-22.
The Supreme Court is not exempt from the law of unintended consequences. The Court may have anticipated the robust industry that Roe v. Wade would launch. But surely, it did not foresee the intensity and duration of the ensuing debate over abortion, or its extraordinary impact on American politics. As a Catholic judge who was once an actor in the political arena, I am concerned here with two notions that have gained currency as a result of that debate.
The first of these holds that federal judges serve as philosopher kings, that they are endowed with the authority not merely to interpret the law, but to ordain it. That, of course, is the implicit premise behind the controversy over recent Supreme Court nominations, which has focused largely on the nominees' putative views on essentially political questions. The second asserts, in effect, that it is un-American to advocate any public policy that is derived from religious teachings, the implication being that such advocacy is somehow subversive of the religion clauses of the First Amendment. Thus it seeks to impose on the debate of important public issues a code of "politically correct" restrictions that would crowd religious perspectives out of the political marketplace.
Because their church has declined to trim its moral teachings to accommodate contemporary fashion, American Catholics have been particularly, though not uniquely, affected by these new perceptions of the courts and the First Amendment. Given the Church's teachings on abortion, it is hardly surprising that Governor Douglas Wilder and other Americans who think of judges as policymakers should express concern over the nomination of a Catholic to the Supreme Court, the Constitution's prohibition of religious tests for public office notwithstanding. Moreover, Catholics who advocate laws to protect the unborn are routinely criticized for attempting to "impose" their religious values on others. At times, it is even suggested that they have still to prove themselves acceptable participants in American political life.
I propose to address these misconceptions by presenting my own understanding of the nature and limits of my authority as a federal judge, and by offering some thoughts on the role of the Catholic community in America today. But first, it is necessary to place the discussion in its constitutional and historical context.
The Founders of the American Republic were not afraid of religion. To the contrary, they thought it essential to the success of their fledgling government. A common theme that ran through their writings was that the survival of the Republic, as well as of the liberties it was intended to protect, ultimately depended on what the Founders referred to as the "republican morality" of its citizens. They further understood that there was a link between religion and virtue. Thomas Jefferson, hardly a "churched" man, referred to religion as the "alpha and omega of the moral law"; John Adams asserted that "our Constitution was made only for a moral and religious people"; and in his Farewell Address, Washington warned that "reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle."
In sum, we live in a society in which the importance of religion has always been recognized. And while the First Amendment forbids laws "respecting an establishment of religion," it has never required that the state be isolated from exposure to religious principles. To read the Constitution as though it did would be to rob religious liberty of meaning. The men gathered in Philadelphia who outlawed religious tests for public service surely had the practical common sense to know-if some contemporary ideologues do not-that in those roles in which public servants are expected to bring their personal judgments to bear, including judgments as to what is right or wrong, moral or immoral, the views of religious individuals will inevitably reflect their religious beliefs. It is, quite simply, fatuous to suppose that a public official can check the religious components of his convictions at the door before entering the council chambers of government.
Thus under our constitutional arrangements, a President and members of Congress need never apologize for the fact that their views or votes reflect their religious convictions. As members of the elected branches of our government, they are expected to engage in the formulation of public policy subject only to the restraints imposed by the Constitution. The role of a federal judge, however, is of a significantly different kind. As an unelected official, he can claim no mandate to reconstruct public policy. Rather, his constitutional duties are exclusively judicial: it is his job to give force and effect to the law, whether he agrees with it or not; and that is responsibility enough.
When I took my oath of office, I solemnly swore that I would "administer justice without respect to persons, and . . . faithfully and impartially discharge all the duties incumbent upon me as a United States Circuit Judge, according to the best of my abilities and understanding, agreeably to the Constitution and laws of the United States." The authority that was vested in me upon taking that oath is derived exclusively from the Constitution. Thus the justice I am sworn to administer is not justice as I might see it, but justice as defined by the Constitution and laws and legal traditions of the United States. And if I consciously deviate from that body of law to do justice as I see it, I violate my oath of office and undermine the safeguards embodied in the Separation of Powers. Should I ever be asked to hear a case in which the application of the law might result in my material complicity in an immoral act, I would have to examine my conscience and, if it so dictated, recuse myself. What I may not do is bend the law to suit my conscience.
A judge, of course, is no more relieved of moral responsibility for his work than anyone else in either private or public life. The duty of a federal judge, however, is to be measured by the requirements of his office. A man cannot act as the impartial arbiter of the law unless he is willing to apply it. That, in part, is what is meant by judicial temperament-the ability to subordinate personal feelings and beliefs to the constitutional duties assumed-what Robert Bork has described as the principled jurist's "continuing self-conscious renunciation of power."
I recognize that the commands of the positive law are not always self-evident. If they were, the work of my court would be far lighter than it is. Nevertheless, whether these commands are clear or opaque, the same underlying principle applies. When faced with ambiguities, or with problems that fall within the interstices that inevitably exist within and between laws, a judge is necessarily called upon to exercise a large measure of discretion. In doing so, he will inevitably bring to that task everything that he is-the books he has read; his experience as spouse, parent, and public official; his understanding of the nature of man and the responsibilities of citizenship; his sense of justice; even his sense of humor. A judge is not a machine, and the judicial function cannot be displaced by a formula or measured by an equation. But while his own experience will necessarily affect how he reads the law, it is a judge's task to discern the governing legal principles as objectively as he can, and then to apply them.
Some suggest that there is one area in which a judge may exercise broad discretion, although I myself have yet to encounter it. There is an ongoing debate as to whether the Constitution incorporates the great principles of natural law that inform the Declaration of Independence. The suggestion is not implausible. Every regime, after all, rests on certain beliefs, beliefs about the nature and purpose of man and about the nature and purpose of civil society, beliefs about why one way of life is morally superior to another. Whether or not comprehensively and formally articulated, those beliefs are the animating principles of that regime's fundamental law or constitution. In our case, what Abraham Lincoln called the "central idea" that animates the American body politic is the idea of human equality as articulated in the Preamble to the Declaration. But, again, should the resolution of a particular constitutional issue require reference to concepts of natural law, the principles I must apply will be found not in my subjective notions of justice, not in the teachings of Catholic theologians, but in the Organic Laws of the United States: more specifically, in the Declaration and the Constitution.
Finally, there are numerous occasions on which a judge is called upon to apply such elusive concepts as "fairness" and "reasonableness." These will typically involve a question of due process, and will draw on a judge's general experience and judgment. But even in such instances, judges are enjoined to seek out objective criteria. Thus, the Supreme Court has cautioned that "judges are not free, in defining 'due process,' to impose . . . [their] 'personal and private notions' of fairness and to 'disregard the limits that bind judges in their judicial function.' [Their] task is more circumscribed. [They] are to determine only whether the action complained of . . . violates those 'fundamental conceptions of justice which lie at the base of our civil and political institutions,' and which define 'the community's sense of fair play and decency.'" I confess that it is hard to find any "bright lines" in this instruction, but I believe the sense of it is clear. Nevertheless, because the Supreme Court's reference to "the community's sense of fair play" echoes some sentiments expressed by Justice William Brennan in his 1985 address at Georgetown University, sentiments with which I have been bold enough to take issue, I believe it appropriate to state my own view of the role of a judge in interpreting the Constitution.
In his address, Justice Brennan observed that "the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs." He stated that "the act of interpretation must be undertaken with full consciousness that it is, in a very real sense, the community's interpretation that is sought." With all respect, this statement seems to me to beg the question of a tenured judge's competence to speak for the community at large. Justice Brennan also spoke of the Bill of Rights as "a sparkling vision of the supremacy of the human dignity of every individual," and stated that it is the function of federal courts to bring that vision to full fruition in the light of "the evolution of our concepts of human dignity."
Once again, I am troubled by the implicit assumptions here. On the matter of capital punishment, for example, Justice Brennan acknowledged that his own views were shared by neither a majority of the Court nor a majority of his countrymen. Nonetheless, he asserted that "on this issue, the death penalty, I hope to embody a community striving for human dignity for all, although perhaps not yet arrived." Thus Justice Brennan seemed to say that he found the authority for his votes on this issue not in the explicit language of the Constitution, not in community sentiment, but in his own perception of what is required by an enlightened understanding of human dignity.
Justice Brennan may well be right in his assessment of what the law ought to require, but I find his position hard to reconcile with John Marshall's in Marbury v. Madison, in which he asserted the Supreme Court's right to invalidate an act of Congress. In that case, Marshall affirmed that the Constitution was "superior, paramount law," and that "it is emphatically the province and duty of the judicial department to say what the law is." Thus, when the Court concludes that the Constitution and an act of Congress are in conflict, the latter must yield. This seems a rather straightforward proposition: the Constitution is law, and as with any other law, it has a meaning that judges are trained to ascertain and apply.
I fully recognize that a body of respected thought supports the premise behind Justice Brennan's remarks, namely, that its nuts and bolts provisions aside, the Constitution is essentially a depository of principles that each generation of jurists is at liberty to adapt to the exigencies of the time. Whatever the merits of that school of thought, I believe that my own reliance on original meaning in constitutional interpretation is not only sounder in principle, but better designed to narrow the occasions for the ultimate judicial sin: the abuse of power. In our democracy, this sin can be profoundly damaging. Congressional errors are readily remedied, but an error by the Supreme Court in interpreting the Constitution is enormously difficult to correct. In the case of the Dred Scott decision, it took a civil war.
Given the Anglo-American common law tradition, in which precedent builds on precedent, an unconscious evolutionary development of the law is inevitable even when predicated on the written text of a constitution or statute. It ought to be clear, however, that in a governmental system based on the rule of law, federal judges have no license to insert their own views of what is right or just into constitutional or statutory law. To put it bluntly, no federal judge, however wise, has the moral or political competence to write the laws for a self-governing people; and no American, Catholic or not, should wish it otherwise.
But while it is improper for any judge to use his position to smuggle religious doctrines into the law, the law may well benefit from a religious judge's approach to his work. To the degree that there is such a thing as a Catholic ethos, and I believe there is, it nurtures a respect for and acceptance of lawful authority and tradition, and it cultivates a sense of work as vocation. Moreover, as Catholics continue to believe in a Purgatory and Hell, they understand that a betrayal of trust will be punished in the next world if not in this.
Which brings us to the issue of the role of the Catholic community in American political life. It is widely observed that we live in an increasingly secular and even anti-Christian age. While some may celebrate the fact and others decry it, surely no one would disagree with the general thrust of this description of our time. Many of the moral beliefs that have traditionally informed our public life are being questioned as never before. These beliefs derive ultimately, though perhaps not exclusively, from Christian political thought, but their assimilation by the law has made them part of the intellectual and moral patrimony of all Americans regardless of creed.
Taken together, these beliefs constitute what has been called "the American Proposition." And it is that proposition, rather than a particular teaching of a particular congregation, that is now under assault. We seem, in short, to be at some risk of losing our identity as a people whose public life is rooted in "the laws of Nature and Nature's God." If that is the case-and a good argument can be made that it is-Catholics are not alone in their concern for the future of American public life.
This suggests that today the Catholic community may be facing new challenges, new responsibilities. Not very long ago, the principal problem facing American Catholics was thought to be one of assimilation. Was the American political tradition broad enough and deep enough to accept, in the spirit of true religious toleration, the views of Catholics? In the late 1950s John Courtney Murray wrote a brilliant book devoted to the exploration of that and related questions. In the course of his characteristically rigorous yet subtle argument, he sought to instruct thoughtful Americans about the terms for a principled accommodation. Significantly, he took as the title for his work a phrase from the Preamble to the Declaration of Independence: We Hold These Truths. It was in that document that Murray found the common ground, arguing that the teachings of the Declaration, rightly understood, were consonant with the tradition of natural law associated with the Church.
Murray, however, was no Pollyanna. He was wary of a strand of modern thought that celebrated rather too much a certain form of individualism that was fundamentally incompatible with the requirements of political community. He sought to qualify such individualism with an older wisdom, a wisdom that emphasized the social nature of man and the political principles that derive from natural law. Murray found those principles radiating from the words of the Declaration's Preamble, and it was to a proper understanding of those words that he, in effect, devoted his argument. In doing so, however, he was all too aware that widespread dissent from these principles might one day occur and shatter the moral consensus that defines the American people as a People. In that event, he said, we would be confronted with one of history's great ironies, namely, the possibility that the "guardianship of the original American consensus . . . would have passed to the Catholic community. . . . It would be for others, not Catholics, to ask themselves whether they still shared the consensus which first fashioned the American people into a body politic and determined the structure of its fundamental law."
Murray's fears about the shattering of the consensus appear, alas, to have been well grounded. He may be proved right in another respect as well: that it may fall to Catholics, often the victims of American intolerance, to draw on their own faith to defend the American political tradition from those who would strip it of its moral content. Such a role, as Murray said, would be paradoxical indeed, for Catholics, after all, have long suffered the burden of being something of a suspect class.
The origins of that suspicion derive in part from misunderstanding and in part from a simple, old-fashioned nativism, which imagines Catholics conspiring long into the night to convert the United States into some sort of a Papal duchy. One almost has to be a Catholic to appreciate fully the ridiculousness of such fears, and from the vantage point of the late twentieth century, at least, it is sometimes difficult to understand the passions that animate them. Nevertheless, it is a fact that a certain ugly strain of nativist sensibility has in various forms and with varying degrees of virulence made its presence known in American life-witness state prohibitions against Catholic officeholders, the rise of the "Know-Nothings," the efforts to prohibit Catholic schools, and the venomous anti-Catholicism of the Ku Klux Klan, to name only four examples.
While old prejudices die hard and while there may be some backwaters of the body politic where such opinions are still entertained, it does seem to me that outright vulgar nativism is less widespread than it once was. Thanks in part to the election of John F. Kennedy, we have come a long way since 1928, when Al Smith's Catholicism was openly and viciously caricatured as a threat to the American way of life. I do not study public opinion polls, but I have the sense that the general public, at least, has come to see that Catholics do not have horns and is prepared to extend all appropriate legal courtesies to their "Roman" brethren.
Nevertheless, it is the case that what is true of the general public may not be true of certain members of what Mencken called the "thinking" class. Many, in fact, would agree with Peter Viereck that today anti-Catholicism is the anti-Semitism of the intellectuals. I am neither a philosopher nor a historian, but there does seem to be a species of intellectual who simply cannot abide the thought that Catholics can or should take their religion seriously-seriously enough, that is, to have it inform their behavior as free citizens of a republic. For intellectuals such as these, Catholics, like children of old, may be seen but not heard. When Catholics do venture to make their views known in the affairs of state, they are frequently accused of trying to "legislate" morality, or to "impose their morality on others," or, more recently, to violate some unarticulated "truce of tolerance" under which Catholics are permitted the same privileges as other citizens.
The truth of the matter, of course, is that we have always legislated morality, and those who would claim otherwise are ignorant of both history and the law. Whatever else might be said, it seems clear that it would have struck previous generations of Americans as only slightly less than absurd to say that morality cannot or should not be legislated. Americans have always debated-and will, I hope, continue to debate-the propriety or prudence of incorporating certain moral propositions into the law. But to say that morality and law do not or should not mix flies in the face of everything we know about American history, or for that matter, about the history of every system of law since at least the Code of Hammurabi. Nor have we, in this "enlightened" age, ceased to legislate morality. How, for example, are we to describe the civil rights laws of the past generation except as the codification of a moral imperative? And what about our various social welfare laws? Are they not expressions of a corporate responsibility for the old, the sick, and the poor among us?
Much, if not most, criticism of Catholic activism arises in the context of such sharply divisive issues as abortion and homosexual rights, about which the doctrinal teaching of the Church is decidedly unfashionable. While Catholics are not the only citizens whose views on these issues are out of fashion, they nevertheless come in for more than their fair share of obloquy when they seek to effect changes in government policy. It was not very long ago, however, when the laws of virtually every state took a rather uncompromising stand against both abortion and homosexuality. Those laws were enacted by legislatures and enforced by courts peopled by men and women who would have headed for the hills at the very thought that they were carrying out the bidding of the Roman Pontiff.
The political wisdom of such laws has been, and will continue to be, debated by people of every imaginable religious disposition, including nonbelievers. Some critics of the Catholic Church nevertheless find it convenient to imply that the only thing controversial is the participation in these debates of Catholics speaking as Catholics. They assert that we may legitimately enter public debate on questions of morality only to the extent that we park our religious doctrines at the door. It was this assertion, indeed, that prompted Richard John Neuhaus to remark that, for some people, the only good Catholic seems to be a bad Catholic.
The real issue in policy debates about public morality is not whether a particular stance happens to coincide with the teachings of a particular congregation. The real issue is whether that stance is consonant with the moral disposition of the American people broadly understood, that is to say, without reference to any religious affiliation. One does not have to be "churched" in order to hold fairly strong views on questions of public morality.
Here it is necessary to observe that much of the intellectual hostility directed toward Catholicism seems at times to be only incidentally about Catholicism as such. It is true that Catholicism, or teachings rightly or wrongly ascribed to Catholicism, are frequently targeted with special venom. That criticism, however, may be only part of a larger assault against a broader political and moral heritage, a heritage for which the Church just happens to be a particularly strong and articulate exponent in the modern world. In short, not only Catholicism and the opinions generally associated with Catholic belief have become the objects of ridicule or caricature; the contumely is directed at any set of opinions, or any source of authority, whether specifically religious or not, that relies upon or points toward "the laws of Nature" as a fixed standard for the guidance of human behavior.
If this is really the case, what is at stake is not just the position of Catholics qua Catholics but the philosophical foundations of American democracy itself. Those foundations are now under attack; and American Catholics owe it to their country to enlist in the defense of traditional American values.
The phrase "American Catholic" is not an oxymoron. To the contrary, as one surveys the American landscape today, one can find no community that believes more deeply in the truths of the American Proposition-truths that are as fresh and relevant today as they ever were. Those truths are under assault by a new breed of zealots who would redefine the American character. If Catholics will join with others who understand the nature of their patrimony, if they will speak out in support of the moral principles inherent in the American Proposition, they may well play the pivotal role in preserving this Nation as "the last, best hope of earth."
JAMES L. BUCKLEY, a former United States Senator from New York, is a judge on the U. S. Court of Appeals for the District of Columbia Circuit.