Strengthening Constitutional Self-Government

No Left Turns

Cuomo on Roberts

I missed this op-ed a couple of days ago. Mario Cuomo has clearly learned nothing from his exchange with Douglas Kmiec, since he repeats most of what he said then, arguing that if conservative Catholics give Roberts a pass for upholding the Constitution (over against his "deeply held personal beliefs"), then they should also give Catholic politicians like Kennedy and Kerry the same leeway.

There are at least two things wrong with this argument. First, Cuomo doesn’t distinguish between judges and politicians (which isn’t a surprise). Judges aren’t supposed to vote their consciences; their "office" is to interpret the law. A political leader can act on his or her conscience, working to change the Constitution, if need be. If a judge worked to "change the Constitution," by (say) reading into it provisions that aren’t there (however otherwise desirable they might be), he or she would be violating his or her oath (or affirmation).

Second, what troubles conservative Catholics about Kennedy and Kerry (here I’m speculating, since I’m merely a conservative ex-Catholic) is not that they refuse to act conscientiously to uphold church teaching against the Constitution, but that it’s not clear that they actually "privately" support church teaching.

The good news, such as there is, from this article is that Cuomo is looking for ways to leverage Roberts’s inevitable appointment to the Court to get his friends of the hook onto which they have wriggled. He argues that Roberts should be taken at his word when he promises to uphold the Constitution, and that the Kerry/Kennedy version of the Constitution should provide them with all the cover they need to go on their merry ways.

Update: Rick Garnett and Thomas Berg, two smart law professors, have more.

Discussions - 1 Comment

What was most annoying about Kerry’s abortion position, for me at least, was not that he refused to enact into law Catholic teachings on the subject, but that he took the additional step in the debates of (typical for Kerry) trying to have it both ways. He said that he thinks abortion is morally wrong, but that he would not act to impose his religious and moral beliefs on the country--that he cannot substitute his personal moral beliefs for a woman’s right to choose. I don’t remember anyone really pressing him on this issue (certainly not in the debates), but if he really does believe that abortion is morally wrong (a belief that I frankly doubt he holds), one must ask why he believes this. The answer would almost certainly have something to do with destroying innocent life, and if that is the case, how can he justify not trying to enact his moral views into law? If he really believes that innocent human life is being destroyed, how can he seriously refuse to try to protect such helpless life in deference to another’s choice to destroy it? It’s like saying I think murder is morally wrong, but I don’t want to criminalize it because it interferes with the right of the murderer to choose. To be clear, I’m not saying that I think abortion is morally wrong or tantamount to murder, and I’m not saying that Kerry must be anti-abortion because he’s a Catholic; I just wish he would be more honest about his disagreement with the church, and when he wasn’t during the election, that folks in the media would have pressed him some more to explain his seemingly irreconcilable positions.

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