Law, Order, and Amy Coney Barrett

Law, Order, and Amy Coney Barrett October 15, 2020

Rachel Malehorn: Amy Coney Barrett /Wikimedia Commons

Just as Jesus could say the Sabbath was made for humanity, not humanity for the Sabbath (cf. Mk. 2:27), so we can and should say the law is made for humanity, not humanity for the law. The law is meant to promote and preserve justice. It should aim for and promote the common good. If some law does not promote justice, but rather, injustice, it is not to be followed or served – an unjust law is no law.

Positive law can be questioned; it does not have to be, indeed, should not be treated as an absolute. When it is found wanting, it is to be corrected, if not eliminated. No text, by itself, speaks for itself. Everyone who reads, interprets what they read. Those who try to pretend otherwise confuse their own ideas of the law  with the law itself, creating dangerous ideologies. Tyranny promotes itself along such ideals. While there might be some sort of order which comes out of the enforcement of tyranny, such order promotes evil and must be resisted.

We must be concerned more about justice than the text of the law, that is, we must interpret laws which are in place in accordance with justice. If a particular law promotes exploitation, if it protects privilege at the expense of the needs of the common good, it undermines justice and must be rejected. What, moreover, is more common than the whole of humanity? And how can the good of humanity be promoted if the law does not protect the environment in which humans live, because with the destruction of the environment, humanity itself will suffer, if not become extinct.  Thus, Pope Francis said, “The climate is a common good, belonging to all and meant for all. At the global level, it is a complex system linked to many of the essential conditions for human life.”[1]  And, he pointed out, humans play an important role in what is happening to the environment, including and especially, climate change:

It would hardly be helpful to describe symptoms without acknowledging the human origins of the ecological crisis. A certain way of understanding human life and activity has gone awry, to the serious detriment of the world around us. Should we not pause and consider this? At this stage, I propose that we focus on the dominant technocratic paradigm and the place of human beings and of human action in the world. [2]

It is hard to believe that a so-called faithful Catholic could outright dismiss Catholic teaching with a shrug, but that is what so many seem to do with climate change, despite the fact Pope after Pope has spoken of the need for us to be concerned about the environment. Thus, when Amy Coney Barrett was asked about climate change, she had ample opportunity to show how her Catholic faith could work with and promote the common good, because it is exactly what the church is doing, but instead, she showed her willingness to ignore the crises by saying she is not a scientist. Certainly, she could say she is not a scientist, but she could at least admit the that the scientific consensus is that climate change is real and dangerous and that humans need to do something about it (without dictating what should be done). That she could not do so, that she was unwilling to speak in a generality in support of the common good, appears to follow from her own environmental legacy in which she did not seem to work for the common good, but rather, private interests.

This, of course, is just one example among many in which Amy Coney Barret has shown she does not represent Catholic teaching. This is why criticism of her must not be equated with hostility towards Catholicism. At the forefront of Catholic discussions of justice is the common good. Indeed, as Pope Benedict XVI explained, we must take a stand for the common good, using political institutions, which includes the courts, for it. That means, we work on behalf of our neighbors:

To take a stand for the common good is on the one hand to be solicitous for, and on the other hand to avail oneself of, that complex of institutions that give structure to the life of society, juridically, civilly, politically and culturally, making it the pólis, or “city”. The more we strive to secure a common good corresponding to the real needs of our neighbours, the more effectively we love them. Every Christian is called to practise this charity, in a manner corresponding to his vocation and according to the degree of influence he wields in the pólis. This is the institutional path — we might also call it the political path — of charity, no less excellent and effective than the kind of charity which encounters the neighbour directly, outside the institutional mediation of the pólis. When animated by charity, commitment to the common good has greater worth than a merely secular and political stand would have. Like all commitment to justice, it has a place within the testimony of divine charity that paves the way for eternity through temporal action. Man’s earthly activity, when inspired and sustained by charity, contributes to the building of the universal city of God, which is the goal of the history of the human family. In an increasingly globalized society, the common good and the effort to obtain it cannot fail to assume the dimensions of the whole human family, that is to say, the community of peoples and nations in such a way as to shape the earthly city in unity and peace, rendering it to some degree an anticipation and a prefiguration of the undivided city of God.[3]

Sadly, Amy Coney Barret has not shown any sign of this in her judgment or ruling. Her own ideological stand with the law, originalism and textualism, like any fundamentalism, hides its ideologies by trying to claim whatever decisions are made come from the law itself, instead of the biases of the interpreter. And it does so in order to promote the letter of the law over the spirit, a letter which always leads to death, as Paul noted, because the law is seen as more important than humanity and the common good. Is it any wonder, then, that Amy Coney Barrett’s opinions seem to harm the common good, and to allow injustices to prevail, such as when she questioned whether or not racist epithets in the work place could constitute a hostile working environment, or when she suggested gun rights are to be protected more than voting rights? It appears, for her, individualism trumps the common good, and this is why she is more ready to defend individualistic interpretation of rights than those which work for the common good. Is this why, when questioned about basic principles in the Constitution, she is liable to forget those rights which help society when the common good is neglected?

Catholic teaching on civil society is clear: social justice, the common good, must be promoted, and when it is not, society itself is liable to collapse:

But the value of democracy stands or falls with the values which it embodies and promotes. Of course, values such as the dignity of every human person, respect for inviolable and inalienable human rights, and the adoption of the “common good” as the end and criterion regulating political life are certainly fundamental and not to be ignored.[4]

It is by these principles laws are to be interpreted or overturned. The Constitution was not meant to be a static, unchanging document. It was not interpreted one way by the Founding Fathers of the United States. It was read and interpreted in a multitude of ways, many of which allowed for and showed changing opinions and interpretations from its inception. Those who try to hold to some sort of legalistic textualism and originalism are philosophically naïve, if not outright dishonest. The point of the Constitution was to establish a “more perfect union,” and over time, we have learned what it takes to create that more perfect union, such as the rejection of slavery and the promotion of equal rights and justice for all. Catholics have principles which they must put in play in order to judge these standards, among which, is the preferential option for the poor and vulnerable. The rule of law, society, must not ignore the needs of the people. To serve only the wants of the elite; as Pope Francis indicates, will lead to violence as those who have been disregarded will no longer let such injustice continue without a response:

When one part of society exploits all that the world has to offer, acting as if the poor did not exist, there will eventually be consequences. Sooner or later, ignoring the existence and rights of others will erupt in some form of violence, often when least expected. Liberty, equality and fraternity can remain lofty ideals unless they apply to everyone. Encounter cannot take place only between the holders of economic, political or academic power. Genuine social encounter calls for a dialogue that engages the culture shared by the majority of the population. It often happens that good ideas are not accepted by the poorer sectors of society because they are presented in a cultural garb that is not their own and with which they cannot identify. A realistic and inclusive social covenant must also be a “cultural covenant”, one that respects and acknowledges the different worldviews, cultures and lifestyles that coexist in society. [5]

The basic principles which Catholics use to engage justice and the promotion of the common good are, of course, principles are not exclusively Catholic, but common to all humanity. Much of it comes from the so-called “natural law,” and the way philosophers through the centuries have developed our understanding of justice. Those who would ignore these principles and try to force an earlier, unreformed vision of the United States upon us will not only counter the common good, but the intention of the framers of the Constitution itself, and by doing so, risk creating the violence which might end the Republic itself.

While it is true, Amy Coney Barrett will ignore questions about specific cases which she might have to rule on if she is indeed made a Supreme Court Justice (a fate which is mostly certain once she was nominated because of the way the GOP is wielding power), asking general questions about her principles and how she understands the Constitution does not require her to make specific declarations. It is clear, she is dodging questions which she can and should answer. When asked if a sitting President could postpone an election, she should be ready to answer with the Constitution which says it is Congress which has the power over elections. When asked about voter intimidation, she should be willing  to state unequivocally it is wrong, even if each particular version of it will differ and so should have different consequences if and when addressed in courts. The fact that she will not answer such questions should be enough to raise further questions about Amy’s principles, because that is exactly what such questions are meant to reveal. Why will she not reveal her basic principles? As prudence is always required when dealing with particular cases, revealing principles will not reveal the outcome of any particular case. It would appear she  has something to hide, which is why her own assertion we should trust her because she has integrity runs hollow.

The law is for humanity. The Constitution promotes the common good, seeking, as it does, for a more perfect union. From her record, it seems that Amy Coney Barrett does not get this. Her textualism and originalism, like all fundamentalisms, puts the letter over the spirit of the law. And for that reason, granting her a seat on the Supreme Court, which seems inevitable, seems to be another step towards the tyranny which the Constitution itself sought to prevent.

[1] Pope Francis, Laudato si’. Vatican Translation. ¶23.

[2] Pope Francis, Laudato si’, ¶101.

[3] Pope Benedict XVI, Caritas in veritate, Vatican Translation. ¶7.

[4] St. John Paul II, Evangelium Vitae. Vatican translation. ¶70.

[5] Pope Francis, Fratelli tutti. Vatican translation. ¶ 219.


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