Covering the thickets of the law

Just a quick update on an ongoing topic. There is an interesting essay in The Wall Street Journal about Catholicism, John Roberts, Sen. Richard Durbin and St. Thomas More — sort of in that order. Clearly this topic is going to keep coming up, as demonstrated by Jeremy with this post yesterday and Doug with another earlier in the week (great art) about the start of this new angle on the Supreme Court wars.

The WSJ article is by Douglas Kmiec, a professor of constitutional law at Pepperdine University and once the dean of the Catholic University law school. The piece is low-key and sane, and this is how it ends:

Catholics do not have to recuse themselves, though, from judging the legality of, say, abortion or the death penalty: These are matters of constitutional, not moral, authority. When More was asked why he didn’t arrest a man directly for being “bad,” he replied (as retold by Sir Robert Bolt) that, though he set man’s law “far below” God’s, he was most certainly “not God,” and he wanted to draw “attention to [that] fact.” “The currents and eddies of right and wrong, which [others] find such plain sailing,” More said, “I can’t navigate. . . . But in the thickets of the law, oh, there I’m a forester. I doubt there’s a man alive who could follow me there, thank God.”

There is no match for Judge Roberts, either, in the “thickets of the law,” and the Senate Democrats should evaluate him on his high merit and avoid picking a fight with American Catholics.

I know this is an obvious point, but this whole Roberts/Catholic angle is really not a clash between Republicans and Democrats, at this stage. It’s a flash point between Catholics. James Davison Hunter, please call your answering service.

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About tmatt

Terry Mattingly directs the Washington Journalism Center at the Council for Christian Colleges and Universities. He writes a weekly column for the Universal Syndicate.

  • Michael

    A smart argument. The most telling thing is he actuall mentions the death penalty, or “the taking of a human life that gets lost in the abortion debate.”

    What would happen if priests started denying Communion to Catholic politicians who support the death penalty? It wouldn’t have the same rhetorical impact for conservative Catholics, but it would raise interesting points. If you are “devoute Catholic” judge, does that mean you would oppose all death penalty cases and never permit a prisoner to be executed?

  • tmatt


    I am a strong opponent of the death penalty, so don’t read me wrong. What you need to understand is that, while the Roman Church has expressed severe doubts about the death penalty, it never has completely condemned it and it CERTAINLY has not done so in the same dogmatic language as abortion. With abortion, you are dealing with almost 2000 years of unbroken Orthodox and Catholic tradition. Both are life and death issues. But they do not carry the same doctrinal weight in church tradition.

  • alicia

    To date, the denial of communion has centered upon those who not only disagree with church teaching on matters of serious sin, but on those who do it repeatedly, publicly, and defiantly, thereby creating scandal. The fact that most of those sins have to do with sexuality (abortion, homosexual ‘marriage’,) says more about our culture’s pre-occupations than it does about the church. The church also has formally excommunicated those who have attempted to ordain women and those women who hold themselves out to be validly ordained. (Formal excommunication is much more severe than simply denial of communion, BTW – it is more akin to the Plain Folk’s practice of shunning).

  • shane wilkins

    Perhaps this question has a simple answer which I, in my naievite about philosophy of law, have simply overlooked. If so, i’d be much obliged to someone for pointing out my errors. But isn’t it the case that all laws are moral judgments, and that, therefore Roberts ought not to recuse himself on the abortion question or any other questions where his faith and the law might conflict?

    I don’t know anything about Thomas More, but it does seem to me that most people who try to drive a wedge between legality and morality do so on the basis of wanting to avoid ‘legislating morality’. The idea is that a tolerant, pluralistic society ought to enforce only the bare minimum laws necessary to protect the rights of individual citizens.

    Hume and Mill and Moore, etc. tried to draw a distinction between facts and values, arguing that facts are public, objective, etc. and values are personal and subjective. Since society is by definition public and since we obviously cannot force people to adopt the private, subjective values, therefore we must create laws which would acts as public facts. So we conceive of the judiciary as the enforcer of ‘facts’–laws–rather than ‘values’–morality.

    The problem is that this account is utterly fictional. The inalienable, natural rights with which all men were endowed by their creator are absolutely arbitrary conventions which the people in power at the time decide to extend or withhold. To wit, the fact that they were not extended to black men until the 1860s or to women until the early part of the last century tell me that it was a very personal, subjective evaluation of what slaves and women that established the supposedly ‘rational’, ‘public’ laws. Hopefully at some point our society will decided to give rights to unborn childen.

    So why do we persist in thinking that it is the job of the courts merely to interpret the law?

    It seems to me that the job of a judge is to judge justly. The law is imperfect, and necessarily so. The law does not anticipate everything, nor can it properly weigh mitigating factors. So, we ought to trust the ‘judgment’ of the judges and if John Roberts’s catholic faith helps him judge justly when the law falters, then he ought not to recuse himself by any means. Rather he should render his verdict and try to explain why the law was unjust and required contravening. The responsibility of the justices is to execute justice, not to prop up the tottering edifice of the constitution.

    Shane Wilkins

  • Dan Knauss

    Pretty strange for a model literary/fictional construction of Thomas More to be so consistently used as a model for “the catholic in politics.” The historical Thomas More is a lot more complex and probably a lot more upsetting.