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Invincible Ignorance?

A WSJ piece wonders about journalists and the Constitution

John Roberts will be the fourth Roman Catholic on the current Supreme Court, but only the 10th Catholic among the 109 justices who’ve served in the high court’s 215-year history. A few senators and a good many journalists have made much of it.

Earlier this week, in a span of minutes, three journalists asked me to respond to liberals, like Sen. Richard Durbin (D., Ill.), raising Judge Roberts’s religion as a confirmation issue. As if there were a Republican talking point in my hand, they each asked in similar words: "What’s the line on that?" Minutes before penning this column, a fourth prominent political reporter startled me further by asking: "What religion test clause? Where does that appear?"

Well, here, everyone jot this down. "The line" appears in Article VI of the U.S. Constitution: "No religious test shall ever be required as a qualification to any office or public trust under the United States."

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posted August 5, 2005 at 12:58 am

And “religious test” referred to several centuries of turmoil in Europe during which you couldn’t vote or hold office or own property or be a member of a profession in various countries depending on which religion was established as the state religion. It fluctuated back and forth in England for awhile – sometimes Catholic, sometimes Anglican. It continued here, with some colonies established as Congregationalist, for example. Everyone knows this except all the journalists and “talking heads” who never mention what “establishment of religion” or “religious test” means within the context of the Constitution.

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Glenn Juday

posted August 5, 2005 at 1:31 am

Now what, if anything, more deserves a “right to privacy” than personal religious beliefs? I know- it’s too much to expect logical consistency from the pro-abortion squad.

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Victor Morton

posted August 5, 2005 at 2:23 am

OK … lemme ask something seriously. I promise I will not follow up on this, just because I’m more interested in how people respond to this than how the subsequent rejoinders and tangents of myself and others might work themselves out.
If, as the natural-law types among us say, a judge should find according to natural law regardless of what the positive law might say, because positive law is only law to the extent it’s derivative of natural law …
On those terms … why SHOULDN’T there be a religious test for office? Why SHOULDN’T Catholics be ineligible for public office in a secular republic (or frankly any polity other than a Catholic confessional state)? Any why SHOULDN’T non-Catholics refuse to trust a Catholic with public office?

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posted August 5, 2005 at 5:35 am

Because American law says that natural law is part of our law’s foundations, wherever it came from. Sometimes the odd atheist stresses over where oaths came from (Saxon law, actually, though a lot of tribes had similar ideas) or what oaths are sworn on (I’ve never been able to understand why they don’t just affirm instead of stressing about the Bible; that’s affirmation’s there for). I don’t know if any wacky Christians ever complain because part of natural law comes from Greek and Roman philosophy, but if they do, it’s a little late. (Especially since Christians were the ones who developed that synthesis.) I don’t see what the big deal is, honestly. It has to come from somewhere. In fact, it has to come from several somewheres, since we are eclectic folks.
So given that American civil law also has roots in Roman law (pagan), Byzantine law (ooh, the De Vinci code rears its head! But wait, Justinian’s not Constantine so he must be good), and Napoleonic law (especially in Louisiana — Napoleon-centric), I’m thinking we don’t want to open that particular can of squiggly wiggly worms.
“How can you possibly apply the English common law’s precedents in American law? You’re not English! You’ve never studied in England! No Supreme Court for you!”

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posted August 5, 2005 at 5:45 am

Oops. Didn’t respond to the basic point.
As to the basic point — I believe in jury activism (ie, the Peter Zenger “I don’t think it’s a crime so I won’t convict you” thing). Judge activism…not a good thing. Normal court judges are supposed to represent the law as given by lawmaking bodies and work with the-law-as-it-is. They can always do activism in their spare time, in their civvies.
As for supreme court judges — I’m a fairly strict constructionist myself. In other words, I think judges should read their state and US constitutions and do what they say on paper, not what they say in the inner reaches of their heads. They’ve been hired to tell us about the law, not write legal fanfic.

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posted August 5, 2005 at 7:31 am

Victor: Because not all Catholics share the same views of Natural Law and its application to specific cases, and because many non-Catholics also believe in Natural Law.
It may well be appropriate, therefore, to inquire about a nominee’s views of Natural Law. But using “Catholicism” as a proxy for that is illogical and unjust.
To illustrate the point, there’s plenty of evidence that Roberts is a devout Catholic. For better or for worse, there’s no evidence whatsoever that Natural Law plays any role in his jurisprudence.

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posted August 5, 2005 at 7:35 am

Reminder: The controversy over Roberts’ religion revolves entirely around the suspicion that he will vote to oppose the “constitutional right to abortion.” If Roberts came out today and announced he favored retaining Roe v. Wade, the controversy would end immediately.
This suspicion, by the way, is based on the mind-boggling arrogance of leftwing journalists, some of whom actually believe that only a Catholic would overturn Roe. The truth is that only a fundamentalist secularist would uphold it, since it has no basis in the Constitution at all.

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Mike Petrik

posted August 5, 2005 at 8:23 am

Simon is right. If Roberts stated that he believed the Constitution must be interpreted in light of and subordinate to natural law, the Left would be aghast, until he then stated that natural law plainly included the unlimited right to abortion which right must therefore be recognized as the law of the land. Then they would regard his as an intellectual giant.

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posted August 5, 2005 at 10:01 am

Robert Pasnau is a perfect example of someone who has tried to give abortion the imprimatur of natual law. I’ll third Simon’s and Mike’s position by saying that if Robert’s publicly stated that he refers to natural law in his jurisprudence, but then cited Pasnau as demonstrating that abortion may be morally reconciled with natural law, then his critics would be more likely to stand down.

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Lynn S

posted August 5, 2005 at 12:33 pm

I actually think its more disturbing that our elected representatives seem so unfamiliar with the Constitution …
“What was my line on that?”

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Jonathan Watson

posted August 5, 2005 at 4:21 pm

American law has very little roots in Byzantine law, and more in Roman Law, since Justinian (although Byzantine) was attempting to codify prior Roman legal sources.
So, I think it more properly should be noted that American Law is mostly English common law, which is composed of Anglo-Saxon law, influenced by the combination of Roman and Canon law in Europe in medieval times (the ius commune), with a smattering of feudal law, heavily warped by legal positivism.
–Jonathan Watson

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posted August 5, 2005 at 10:46 pm

Simon, Mike, Ronny,
I agree that the Left’s concerns about Catholicism and Natural Law basically all come down to the question about whether there is a constitutional right to abortion. If Roberts would come forward and say that he would not vote to disturb the right to abortion created by Roe, all these other issues would fade away quickly. However, as I’ve stated before on Amy’s blog, I’m disappointed that the Republicans are seeking to avoid having this national discussion about Roe. Regardless of the cynicism of their approach, the liberals are right. Why should anyone — liberal or conservative — vote to confirm a mystery justice? Roberts should explain whether he thinks Roe was rightly decided as an initial matter and, if he thinks it wasn’t, then explain whether he thinks the abortion question should be returned to the states or whether (as I would have it) he thinks there is already a right to life founded on the natural law. Pro-lifers’ enthusiasm for Roberts seems based on their hunch that he will, in fact, vote to overturn Roe. But even if their hunch is correct (which it may or may not be), these folks are conceding a false notion of what it means to be “qualified” to serve on the Supreme Court. Mike, as I responded to you last week, this sort of approach leaves pro-lifers and conservatives generally with no principled basis to object to nominations of Ginsburgs, Breyers and Souters. On the right today, there seems to be too much congratulating of Bush for his political acumen to the neglect of focusing on what is truly at stake with the federal courts.

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posted August 5, 2005 at 11:01 pm

If we are considering what should and should not be with respect to religious tests, a better question might be why shouldn’t there be a religious test to require judges to be professing Catholics with a proper understanding of the natural law. The natural law is accessible to all, but the Church is the final arbiter as to what is and is not a proper interpretation of the natural law. (Hence, the havoc for the past 10 years that was created by various Church statements about the death penalty.)
Of course, there are de facto religious tests for the Supreme Court. If a nominee professes any unpopular religious opinion which he is not willing to limit to the realm of privatized belief, he will be deemed unfit to serve. One example of this would be an unreformed Mormon who believes and practices plural marriage. I don’t think the all-wise, all-holy, all-merciful and all-just Framers and Ratifiers would be too disappointed that, even under their constitution, such nominees would be de facto disqualified from service.

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