Strengthening Constitutional Self-Government

No Left Turns

Kmiec vs. Cuomo

Here, via Religion Clause (indispensable for First Amendment coverage, by the way), is the transcript of yesterday’s "Meet the Press" session with Douglas Kmiec and Mario Cuomo. Not surprisingly, the subject was the relevance of Catholicism to judges.

A few thoughts. First, Kmiec rightly calls our attention to the difference between judges and legislators, between enforcing, interpreting, and upholding law, on the one hand, and making it, on the other. This is a distinction that many, especially on the Left, do not appreciate. However relevant Catholicism may be for a lawmaker, it is much less so, not to say altogether irrelevant for the office of judge.

Second, both Kmiec and Cuomo make much of the fact that judges take an oath (or an affirmation) to uphold the Constitution. The distinction between oath and affirmation is the distinction between a promise guaranteed by God (or by any other deity or deities) and one guaranteed by the individual himself or herself. In this provision, the Constitution itself recognizes that some (perhaps most)individuals will look to a higher authority and regard themselves as answerable to a higher authority than the Constitution itself. We rely on the integrity of their oath to guarantee their (subordinate) allegiance to the Constitution. Perhaps Roberts should say, in response to the question (if asked) that he has already once taken the oath of office, so that he has promised to God that he will uphold the Constitution.

Finally, Cuomo presumes that one can only follow the Church’s teachings "privately," that an observant and obedient Catholic cannot act politically on the basis of his or her faith. Kmiec, of course, disagrees, offering this very nice statement:

When Catholic politicians bring their faith to the legislative branch, they’re not imposing. They’re sharing. If their view is going to be adopted, it’s because the consent of the governed has decided to accept their view. When judges bring their faith, covertly or overtly, to the bench, they’re not accountable politically. They’re given independence only for one reason, because they promise--and here the governor and I completely agree--they promise to observe the text of the Constitution, its history, its structure and the traditions and the Declaration of Independence that undergirds it.

He doesn’t use the expression "natural law," but part of bearing witness or sharing in the public square surely involves making arguments using the reason that the Roman Catholic Church believes all human beings share. Acting legislatively on the basis of one’s conscience is emphatically not imposing one’s private, idiosyncratic views, but participating in and expressing a shared and/or shareable moral understanding.

If you want more, Rick Garnett has it.

Discussions - 1 Comment

Kmiec actually used "natural law" earlier in the show. I took note because it is still not often heard when talking of these things. Its good to hear someone also mention the Declaration as the foundation for a judges’ interpretation of the Constitution.

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