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June 23, 2008

Comments

kepha

I couldn't help but see parallels between a living government, on the one hand, and a living Magisterium on the other.

kepha

I better clarify. Regarding the issue of interpretation, what the judge is saying could be used against the modern Catholic understanding of an ever-developing deposit of Faith, which yields new discoveries over time, e.g., the Immaculate Conception.

SDG

I couldn't help but see parallels between a living government, on the one hand, and a living Magisterium on the other.

I better clarify. Regarding the issue of interpretation, what the judge is saying could be used against the modern Catholic understanding of an ever-developing deposit of Faith, which yields new discoveries over time, e.g., the Immaculate Conception.

In principle, the Catholic Faith is fundamentally and radically originalist. Everything belonging to the Faith is contained in the original deposit of faith. The task of the Magisterium, like the authentic task of the Supreme Court, is not to safeguard and authentically interpret the meaning of the "faith once given."

In practice, there are occasionally issues of interpretation which to unaided reason may seem as open to question as controverted issues of constitutional law today. However, the Magisterium has one obvious advantage over the Supreme Court, i.e., the certain guidance of the Holy Spirit. Even in the case of such doctrinal developments such as the Immaculate Conception, Catholics have confidence that this is consistent with the original intent of the sacred writers and the inspiring Holy Spirit. By contrast, the Supreme Court's proneness to error and contradiction is all too manifest.

Closely connected with this is the fact that the revealed word of God is perfect and complete, neither needing nor admitting amendments or supplementary public revelation. Lacking this perfection and completeness, human law is in need of tinkering, expanding, revising and supplementing -- not, however, by the interpretive authority of the judiciary, but by the properly vested authorities for such work, the legislature and the voting public at large.

Jeb Protestant

Scalia and my mother went to the same Catholic school in NYC at the same time. She doesn't remember him.

David B.

Lacking this perfection and completeness, human law is in need of tinkering, expanding, revising and supplementing -- not, however, by the interpretive authority of the judiciary, but by the properly vested authorities for such work, the legislature and the voting public at large.

Dude, you preach the truth! :-)

kepha

What I find crucial in Justice Scalia’s interview in regards to contemporary Catholicism is his critique of “living”/”development” as hermeneutics. In other words, Justice Scalia has pointed out that a fundamental change has occurred in American constitutional hermeneutics. This change is the exact same change that has taken place in Catholic hermeneutics regarding both the Bible and Tradition (what Keith Mathison calls “Tradition III.”). In the case of the Sumpreme Court, as Justice Scalia points out, a tremendous amount of power is assumed by the judges, because it now rests upon them to decide whether or not a particular interpretation of the Constitution is a legitmate development. In the case of the Magisterium (the Pope and those bishops who agree with him), a tremendous amount of power is likewise assumed, because it now must judge whether or not a particular interpretation is a legitimate development.

The question that I’m left with is: Upon what basis does the Magisterium (the Pope and those bishops who agree with him) change the way that it interprets the deposit of Faith? The concern that Justice Scalia has regarding the increase in power of the judges as well as the radical change in hermeneutics is the same concenr I have regarding the Papacy.

Mike

>Scalia and my mother went to the same Catholic school in NYC at the same time. She doesn't remember him.

Try Ginkgo

bklyn catholic

Justice Scalia makes a wonderful point that "living" constitutionalists are never engaged in conflict with themselves; they can always choose the path that leads to the conclusion they desire.

This is very true of many Catholics today as well. They view the teachings of the Church as maliable to their own preconceived notions of how, as Justice Scalia puts it, "the world ought to be."

In both cases, no discipline is required. No conflict is overcome or even considered. Nothing is required of the participant but to follow their own construct of society/morality at that given moment. All intellectual exercise becomes transitory, easily dismissed without reflection at any later date. It is actually the opposite of respecting precendent, that which the "living constitutionalists" espouse as so important when it fits their fancy. If precendent is to be respected, why is the Constitution not revered?

In any case, a revealing and intellectually stimulating interview from Justice Scalia. Thank you for including the video.

Tim J.

"Upon what basis does the Magisterium (the Pope and those bishops who agree with him) change the way that it interprets the deposit of Faith?"

Want to give an example?

The Masked Chicken

Dear Kepha,

There seems to be a misunderstanding, here. The Constitution is a man-made document that was agreed upon by a group of people, once-upon-a-time. God is not man-made and he will do what he pleases, whether people agree with him or not.

The act of discernment is different in each case. Judges attempt to decide if a proposed new law is permitted by the Constitution. The judges have no overseers and cannot be (or are rarely) punished for making up any inconsistent interpretation of what the Constitution says (do you know how long it has been since a Supreme Court justice has been removed from the bench for other than health reasons?).

God makes no new laws in the same way that Congress does. He stopped revealing his laws, councils, and precepts the day the last apostle died and closed public revelation. There are no new laws to decide if they fit in with the established Deposit, thus, the Church does not even do the same thing when it decides things as the Supreme Court does. The Church interprets only how original laws (the Deposit of Faith) should be applied to humanity as a whole, as it were, not whether or not God has been consistent in establishing new laws with what he has done in the past (because he established no new laws). We do not judge the law, the Deposit of Faith. In fact, we are specifically forbidden to do so (we would be playing God).

The Church has an overseer (the Holy Spirit) and cannot make an inconsistent judgment with regards to what the Deposit of Faith says. It may make mistakes in other matters relating specifically to the governance of Church, because it does not have God's promise that it will not fail in human matters. Man can fail; God cannot. God has promised that his Church would not fail in matters of Faith and Morals - disciplines are a different matter, as these are man-made, even in the Church.

Your comparison should, properly speaking, be between the Supreme Court when it judges laws and the Church when it acts in the disciplinary (within the Church) sphere. In that case, both are prone to error. So what? Make the comparison about the same things. The Deposit of Faith is not the same thing as the Constitution.

The Deposit of Faith (the "Constitution") is not on the same level as the Constitution, because the Constitution assumes other laws (such as moral laws) that form a background; the Deposit of Faith is the ultimate moral law and the basis for all sane civil law, so indirectly, the Constitution, properly speaking, depends on the Deposit of Faith, but the Deposit of Faith does not depend on the Constitution. One is man-made, provisional and may be changed by amendment; the other is God-given, final, and not amendable (at least by man). Compare man-made vs. man-made.

Has the Church been inconsistent or changed in its disciplines? Yes, although its track record is much better over a longer time period than the Supreme Court's. Has the Church been inconsistent with regards to its interpretation of the Deposit of Faith? No.

The Chicken

Padre Steve

Scalia is amazing! We need 3 or 4 more just like him! Thanks for posting this!

kepha

The Masked Chicken (cool nick, btw),

I didn't mean to compare the Deposit of Faith and the Constitution, much less God and the US Supreme Court. My comparison was/is between the Papacy and the US Supreme Court, specifically the radical change in their hermeneutical principles. American constitutional interpretation has gone from "originalist" to a "living"/developing constitution; the Papacy has gone from a Two Source Theory to the Development of Doctrine Theory.

nnelson3

If the Church's interpretation of the Deposit of Faith is "originalist" in the Scalia-constitutional sense, it can only be because Revelation is infinitely more textured, complex, and profound than the Constitution. Now, it certainly is all those things, because God, unlike the Founding Fathers, is omniscient and eternal, so naturally his communications are going to be more complex and susceptible to more elaborate human "unpacking" than theirs.

Nevertheless, it's also possible that the Church's "originalism" isn't the same as the Court's. Justice Scalia would probably say that the meaning of the Constitution can "develop" only by virtue of either (i) incrementally returning to a more originalist understanding after errors have moved jurisprudence away from it, or (ii) apply the rules as understood at the Framing to new circumstances that were unforeseen by the Framers. I would suggest that (i) is applicable to the Church only in a peripheral sense-- the Church's own doctrine never needs nudging toward correctness the way the Court's constitutional interpretations do; the closest the Church comes is trying to correct the understandings of the culture, those it is evangelizing, or its own members or organizations. And while the Church certainly does undertake role (ii), its development of doctrine is also a lot more than that-- there is no necessity that the dogmas of faith it announces have been "originally understood" by the Apostles or anyone else except God.

I suppose the quesiton boils down to that. If you're prepared to understand the Church as interpreting the Faith as originally understood by God, then the analogy with the Court works very well. The problem, to me, with doing that is that it analogizes the whole story and plan of salvation to a written document. If you try to make that analogy more workable-- by saying that the deposit of faith the Church is interpreting, for purposes of our comparison, is limited to the Scriptures plus the early Christians' actual knowledge of Jesus's life and words, then you run into the problem that many doctrines were only implicit in that body of knowledge, and not actually originally understood by many (or any) individual persons at the time. Either way, it's a bit problematic, if you ask me.

Ed Peters

Very, very interesting. He said about six things that should part of every law student's repetoire. Charlie Rose was less annoying than usual. I am a Scalia fan by and large, though I think Thomas has the deeper grasp of principle. Still, Scalia has done great service to the rule of law.

doshine2@aol.com

Not exactly your point, but come on, I love Charlie Rose! One hour of real conversation with interesting folks night after night. Where else do you get that?

Bruce

The only down side is half of every conversation is -- Charlie Rose. Some really good hosts can interview folks and disappear -- you can't remember they were there. Rose can't, although he does seem to be listening to the person.

LJ

Interesting discussion on abortion without a specific reference to Roe V Wade. I think that Doug Kmiec was right about the direction that originalism will take on that issue. He specifically referred to the thinking of Antonin Scalia, who, it seems to me, is saying in this interview, "don't look to me to change the country on abortion."

A lot of people have believed for a long time that since it was the court that opened the flood-gates of abortion in the first place, by a decision based on bad constitutional law; then it will be the court that will fix it, by repealing Roe V Wade. Hence the great importance of who will be placed on the court. Perhaps some have thought that replacing liberal activism with conservative activism would right the ship. But Scalia is pointing out that he is not an activist and will not betray his principles concerning his job description even to accomplish something that he sees as a social or moral good for the country.

What Scalia seeks and what an originalist court would be, is a court that would stop creating law from the bench. That is a very good thing but it will not satisfy some who want an activist court with a different ideology. Those people will be decidedly unhappy, and I think that Kmiec saw this in advance, and having staked so much of his life and career into that kind of egg basket, reacted in disappointment and made a rash move.

Conservatives, having played by the activists left's rules of the game for so long will need to re-learn the rules of the game if the court became originalist. The forum of debate on any important issue would be back where it belongs in a democratic society, with the elected representatives.

Good interview in my opinion. Rose may be left but certainly is skilled and polished.

Mike Petrik

LJ,
There is nothing activist about overturning a decision that is plainly wrong. The doctrine of stare decisis has merit, but is one of prudence only. Its application in the case of decisions grounded in constitutional matters is pretty limited.
I have long admired Professor Kmiec, but his recent comments about Roe are, to put it charitably, poorly reasoned.

Mary

A lot of people have believed for a long time that since it was the court that opened the flood-gates of abortion in the first place, by a decision based on bad constitutional law; then it will be the court that will fix it, by repealing Roe V Wade.

It will be the start, not the end, but it will be necessary unless we:

1. amend the Constitution.
2. start impeaching Justices for judicial activism (which is in fact merely a first step in getting them to fix it.), or
3. opt for armed revolt.

The third is apt to be worse, and the first is difficult, so it is a prudential judgment whether 1 or 2 is better -- or you can work for both, but it will limit what you can expend on either.

Michael

Justice Scalia makes a wonderful point that "living" constitutionalists are never engaged in conflict with themselves; they can always choose the path that leads to the conclusion they desire.

Scalia is not perfect in this regard. Look at his schizophrenic treatment of the Commerce Clause in Lopez compared to Raich. When it's federal regulation of gun possession, Scalia is all set to limit the governments power under the Commerce Clause in protection of states' rights; but when it's federal regulation of possession and personal use of a crop for medicinal purposes, the citizens of California all of a sudden run afoul of the government's interest in interstate commerce. The outcomes also conveniently fall into the purview of his ideological outlook, ie guns=good, drugs=bad.

bklyn catholic

I wasn't suggesting Scalia invariably followed his reasoning, just that it was a good point to make. Those "living Constitutionalists" that have no adherence to the text itself to compromise have no conflict. Whether or not Scalia fails in similar regard at times is still better than those that make no effort to abide by Constitutional principles at all.

CT

@Michael,

It seems to me just based on your own comment, that there is no valid comparison. In the case of gun possession there is an amendment, independent of the commerce clause, which restricts the role of the federal govt. In the case of illicit drugs, there is no parallel constitutional construction which restricts the role of the federal government.

@bc

You are simply saying that they abide by principles but you do not consider these principles to be aptly called "Constitutional" principles since they conflict with your view of how the court should interact with the Constitution.

bklyn catholic

CT -

Actually CT, no, that is not what I am saying at all. The "living Constitutionalists" argue with disregard to the text of the Constitution regardless of my interpretation. (It is not that they do not agree with me; it is that they do not agree with the text of the Constitution.)

Take Justice Breyer's comments from his recent dissent in the challenge to the D.C. law banning hand guns,

"The upshot is a set of studies and counterstudies that, at most, could leave a judge uncertain about the proper policy conclusion."

What about the role of a Supreme Court judge suggests he/she should/can determine the merits of policy?

This is not a statement reflective of how their principles relate to the Constitution, but on how their principles relate to legislation/policy. The role of the Supreme Court is not to judge the merits of policy, but the legality of policy. I'm sorry, CT, but you are on thin ice here.

For the record, my preferences more often reflect the judgments of Stevens and Souter than they do Scalia and Thomas. I just cannot reconcile their, nor my own, preferences with the written Constitution.

CT

@bc

You are saying that principles that do not hold fidelity to the text of the Constitution paramount over all other considerations cannot aptly or properly be termed "Constitutional principles." I disagree.

One's approach to the Constitution for example can be one of viewing the intent of the authors/ratifiers of the Consitution as paramount over the import of the text itself. Foregoing the law itself in favor of the presumed intent of the lawgiver is known in certain contexts as the principle of epikeia -- and this principle is ancient, preceding the founding of the United States by centuries. A somewhat similar principle can be operative with respect to interpreting the Constitution -- not being held to interpreting the text of the Constitution alone, but upholding both the text and the intention of the Constitution -- some may gave greater priority to one or the other. In the case of Scalia, he holds that the intent of a legislator only matters when there is ambiguity in the text. So for him, even if a law has a disastrous unintended consequence that no one who voted for the law had foreseen nor would have desired, it would be his duty to ensure that this disastrous consequence come about!

Your attempt to separate the legality of policy from the merits of policy is problematic. There can be cases where the legality of a policy depends in a certain way on its merits. For example, suppose there were was a statute that said that the EPA is to enact only those regulations which science has shown to be effective. A court in evaluating the legality then of any given regulation of the EPA would have to evaluate whether the regulation in question has scientific merit since the statute itself demands that it does.

Also, even conceding that the Constitution does not call for judges to weigh in on the merits of a policy independent of its legality (whereas in the above crafted example as well as in real ones, the merits are weighed in only in relation to its legality), it is intellectual mischief to term principles that call for judges to so weigh in as ones that make them devoid of Constitutional principles. It is so because some may simply disagree with your premise that a judges role ought be formed solely by the Constitution -- this question is itself is one of "Constitutional principles" -- i.e. a principle of how one relates as a judge to the Constitution -- is the Constitution to be the sole source (together with other laws it authorizes) of a judge's decisions or is it to be complemented by other sources of insight. The "natural law" school of legal philosophy would seem to hold that another source of insight is to be paramount over the Constitution -- in fact the same Thomas you mention is sometimes said to have inclinations in that direction (whereas Scalia does not)

At the end of the day, it does not matter with what terms you characterize someone's principles. Calling something a certain term is not an argument against it nor an argument for it. All too often, we respond to something by saying for example, "That's regressive taxation" -- well okay, maybe factually it is, but that does not show it is undesirable unless you were to show that regressive taxation is as a general matter undesirable. And so if you were saying simply, "They do not hold fidelity to the text as their paramount concern" or "They do not hold that a judge should not under any circumstance be concerned with the societal effects of their decision" -- then you are making an observation, not backing up any value judgment. but what you did in saying that they lacked Constitutional principles would be the equivalent of someone, instead of saying "that's regressive taxation", saying "that's unamerican" -- "unamerican" does not have substantive meaning just as claiming that one principle is "Constitutional" and the other not does not have substantive meaning and neither is conducive to incisive or fruitful political (in the original sense of the term) discourse.

The Masked Chicken

Dear Mary,

You wrote:

It will be the start, not the end, but it will be necessary unless we:

1. amend the Constitution.
2. start impeaching Justices for judicial activism (which is in fact merely a first step in getting them to fix it.), or
3. opt for armed revolt.

Judge Bork made a comment in his book, Slouching towards Gamorrah, that while a president can veto a bill and congress can override the president's veto, there is nothing comparable between either the president or the Supreme Court. If the judges are going to be guilty of activism (something that was not conceived of by the founders of the Constitution - can any lawyers in the crowd tell me if that is right?), then it would seem that there should be some sort of veto in place, just in case of judicial activism, because they would, then, be functioning as a shadow congress.

I am a bit of a political clod, so be kind.

The Chicken

The Masked Chicken

That should be:

there is nothing comparable between the president and the Supreme Court or Congress and the Supreme Court.

The Chicken

bklyn catholic

CT -

You make fair points, and I appreciate the exchange. My thoughts on them:

Text & Intent
Yes, both the text of the Constitution itself and the intent of those that wrote the Constitution often come into play in a decision and rightly so, both as a way to flesh out our understanding of the text and the origins of it (often from English law).

But the intent of the lawmaker of the law under question is not to be included in the judgement. (e.g. "the area of law is likely not covered by the Constitution, nonetheless, it means well so we rule in favor, (or), the law is clearly unconstitutional but the intent of the law is good therefore we will "interpret" the Constitution in a way that allows us to rule in its favor...")

On Merit
I do not find your example challenges my argument against judges making decisions based on the merit of the law. In your example, they are directed to rule on a statute that states the EPA is only to enforce regulations that science has shown to be effective. Yes, they have to judge the scientific merit of the regulation to coincide with the text of the law. However, they should not conclude that the merit of the law is in question: therefore ruling that a regulation, unsupported by scientific evidence, is nonetheless acceptable because they think it is good policy. In the latter case, the judges are making decisions about the merit of the law passed in a democratic legislature, not judging the merit of a regulation as it pertains to language of the law.

Role of Judges
I understand and accept that there are differences of opinion on the role of judges, whether they should view the text alone or text & intent of the author, or a broader interpretation in reflection on the costs and consequences of a ruling in the present & future.

I used to be very in favor of broad interpretation, but as is clear, I have consistently moved towards a more or less originalist philosophy in my view of a judge's role in a system that is, perhaps loosely, representative of the people's views in its various legislatures (both federal and state).

Again, thank you for your thoughts on this matter.

Michael

It seems to me just based on your own comment, that there is no valid comparison. In the case of gun possession there is an amendment, independent of the commerce clause, which restricts the role of the federal govt. In the case of illicit drugs, there is no parallel constitutional construction which restricts the role of the federal government.

CT:
Nope. Read the opinion. The second amendment is never brought up. The challenge to the law was based on the commerce clause and the commerce clause alone. The issue was not whether the Gun-Free School Zone violated the RKBA but the Commerce Clause. Now Scalia may have privately thought that the GFSZ violated the 2nd amendment but unfortunately it wasn't his role to judge that fact since that was not the violator's defense. So either Scalia overstepped his constitutional duty and judged the legality of the Act based on a constitutional question he was not charged to answer (a big judicial no-no) or he inconsistently applied his principle to get a desired result.

CT

@Michael,

Be that as it may, I am sure Scalia contends his opinion was consistent and yet you have not presented his side of the story here and in that respect have been unfair to him. In any event, different cases have different granules and Scalia does not say his principles apply in such a way such that these granules do not bear on the opinions he may give or join.

Interestingly, unless I misheard him, Scalia, in this interview actually says that probably he has not always been consistent -- he doesn't say he has been dishonest: the context and manner suggests he was simply speaking to the fact that he is not infallible with respect to application of his own principles ... even a computer is not infallible with respect to the application of an algorithm (due to a hardware failure or due to a processor bug this may rarely occur) -- we cannot expect more of men nor attribute internal incoherence to nefariousness.

Sleeping Beastly

As far as Roe v. Wade is concerned, I don't think there's any realistic chance of seeing the decision reversed by the Supreme Court. If we are going to see an end to legalized abortion in this country, it will only come about as the result of an executive order or a constitutional amendment- most likely a combination of the two.

The Supreme Court never reversed the Dred Scott decision either- it took the 14th Amendment to end slavery.

bklyn catholic

@ SB

An executive order will not overturn Roe v. Wade, as certainly Reagan or Bush or Bush would have done so.

It will take a Constitutional amendment, decided upon by, I recall, (perhaps mistakenly), 2/3 of the federal legislatures and 3/4 of the states legislatures. Considering the the Equal Rights Amendment fell roughly 6 states short, it is unlikely that an amendment ending abortion in all cases will pass this threshold.

It is not the responsability of the journalist to see things from the perespective of the subject. Rather it is the responsability of the subject to justify their actions in relations to the questions asked - to convince the journalist and the audience of the rightness of his opinions.

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