By What Authority

I've been working (slowly) on an extended post on this, but today is Monday, and Monday is when all one's sins (most especially sloth) are violently purged from one by a refining fire called 'weekly reporting deliverables'. Naytheless, there's an interesting thread over on Amy's blog, which if experience holds will stretch on to 100 messages or so over the next couple days. The topic is Alito and judicial philosophy in general, and the question is: Can a Catholic judge in good conscience make a ruling that upholds a piece of legislation which goes contrary to Catholic moral teaching and natural law. Amy quotes Ramesh Ponnuru as follows:

A politician who votes to make abortion legal is necessarily willing injustice: He is willing that some human beings be exclude from the basic legal protections that he favors for himself and others; he is violating the Golden Rule. A judge who votes to keep abortion legal is not necessarily willing injustice. He may be merely saying what the law is, while wishing it were otherwise. So, for example, a lower-court judge, or even a Supreme Court justice, might feel himself bound by precedent to affirm a legal right to abortion. Or, to take another example: If a successful campaign were waged for a pro-abortion amendment to the Constitution, it would be reasonable to judge the legislators who voted for that amendment differently than the judges who would have to apply it.

A judge who found that amendment to say what it said would not be "disregard[ing] church teaching on the inviolability of the human person"--as she simplistically suggests. They would also, therefore, not be failing as Catholic public officials in their "special responsibility to be model Catholics and to uphold the Church’s teaching."

The discussion then proceeds with some supporting this interpretation and others maintaining that Evangelium Vitae and Aquinas both teach that a positive law in contravention of the moral law has no standing:

72. The doctrine on the necessary conformity of civil law with the moral law is in continuity with the whole tradition of the Church. This is clear once more from John XXIII's Encyclical: "Authority is a postulate of the moral order and derives from God. Consequently, laws and decrees enacted in contravention of the moral order, and hence of the divine will, can have no binding force in conscience...; indeed, the passing of such laws undermines the very nature of authority and results in shameful abuse".95 This is the clear teaching of Saint Thomas Aquinas, who writes that "human law is law inasmuch as it is in conformity with right reason and thus derives from the eternal law. But when a law is contrary to reason, it is called an unjust law; but in this case it ceases to be a law and becomes instead an act of violence".96 And again: "Every law made by man can be called a law insofar as it derives from the natural law. But if it is somehow opposed to the natural law, then it is not really a law but rather a corruption of the law".97 . . . Laws which authorize and promote abortion and euthanasia are therefore radically opposed not only to the good of the individual but also to the common good; as such they are completely lacking in authentic juridical validity. . . .Consequently, a civil law authorizing abortion or euthanasia ceases by that very fact to be a true, morally binding civil law. . . .In the case of an intrinsically unjust law, such as a law permitting abortion or euthanasia, it is therefore never licit to obey it, or to "take part in a propaganda campaign in favour of such a law, or vote for it".98"

I would need to re-read Evangelium Vitae (haven't read it since college, and I read it fast then) and the appropriate section of Aquinas, but I my initial reaction is that what both of these are teaching is that the fact of the positive law does not invalidate the force of the moral law. In other words, the fact that abortion is currently legal in the United States does not make it morally right to have one or provide one, even if you are in the United States.

That much is, I would think, clear and uncontroversial. However, I'm not clear that these sources are saying that a judge, if faced with a "Freedom of Choice Ammendment" would, morally speaking, have to rule that despite the fact that the ammendment explicitly legallized abortion, that it was not in fact legal.

Part of the distinction here is that the law we are imagining is a law that permits rather than a law that orders a specific course of action. In China, where couples were frequently ordered to have abortions under the one child policy, it would be immoral to obey or enforce that law. However, a 'choice ammendment' would not say "you must have an abortion" but rather "you may have an abortion". Clearly, a Catholic must respond, "No, I may not. And I won't give you one either."

The out, for a federal judge, in dealing with a choice ammendment, would be in maintaining that the ammendment itself was unconstitutional because it contradicted other parts of the constitution. However, I'm really not sure that's possible, much less wise. It seems like if you ammend the constitution to establish some specific right, that you by definition declare thar right to be consistent with the rest of the rights protected in the constitution.