Thursday 18th September 2014

Home » Featured Today » Currently Reading:

Neither Left Nor Right, But Catholic… The Supreme Court: Activism And Abdication

February 18, 2014 Featured Today No Comments

By STEPHEN M. KRASON

(Editor’s Note: Stephen M. Krason is a professor of political science and legal studies and associate director of the Veritas Center for Ethics in Public Life at Franciscan University of Steubenville. He is also cofounder and president of the Society of Catholic Social Scientists. He is the author of several books, including The Transformation of the American Democratic Republic [Transaction Publishers: 2012], and most recently published an edited volume entitled Child Abuse, Family Rights, and the Child Protective System [Scarecrow Press: 2013].
(This column originally appeared in Crisismagazine.com and the Krason column appears monthly in The Wanderer. All rights reserved.)

+    +    +

Serious Catholics and political conservatives since the 1950s have strongly criticized the Supreme Court for making public policy and acting as a kind of “super-legislature” to further a leftist sociopolitical agenda, instead of interpreting the law and judging. We have seen such judicial lawmaking on pornography, abortion, legislative reapportionment, sodomy laws, and the list could go on.
While this has certainly been a valid and much-deserved ongoing criticism of the court, cases in each of its last three terms indicate a new, contrary problem: over-deference to the political branches on both the federal and state levels.
In 2011, the court decided the companion cases of Camreta v. Greene and Alford v. Greene, which concerned whether a child protective system (CPS) operative and a law enforcement official who backed him up could be sued under federal civil rights laws for an aggressive interrogation of a nine-year-old girl — which under international norms possibly constituted psychological torture — to get her to say that her father abused her.
Along with many other organizations, the Society of Catholic Social Scientists filed an amicus curiae brief supporting the girl’s claim (I drafted the brief), mostly because we wanted to focus the court’s attention — as we tried to do over a decade before in the important parental rights case of Troxel v. Granville — on the CPS’s systemic misconduct that in one article I called “a grave threat to the family.” In Camreta/Alford, the court showed no interest in parental rights or in addressing CPS abuses, or even in making their abusive operatives legally accountable in any way for their outrageous actions; it used strained procedural norms to avoid the question.
The decision must be understood as simply unquestioning deference to an executive agency, in this case a state one. The prerogatives of government trumped parental rights, the family, and even abusive behavior against children by agencies supposedly set up to stop abuse. It was not entirely surprising, since in Troxel the court did not think parental rights deserving of the highest standard of constitutional protection.
One wonders if the court kept in mind the insistence of The Federalist Papers that while government needed to have enough power to carry out its rightful responsibilities, it also had to keep itself under control.
In 2012, the court handed down its crucial decision about the Obamacare law, National Federation of Independent Business v. Sebelius. The court engaged in legal and intellectual gymnastics to uphold the law. While a majority of the justices agreed that Congress had no power under either the commerce clause — whose broad interpretation has been a major basis for expending federal power since the New Deal — or the necessary and proper clause to regulate economic inactivity (that is, requiring people to buy health insurance), the court still upheld the crucial individual mandate.
While the text of the law stated specifically that failure to purchase health insurance would incur a financial penalty — the drafters apparently went out of their way to avoid calling it a “tax” — the court’s majority nevertheless decreed it to be a tax in order to save the law. While the leftists on the court almost certainly voted to uphold the law for policy reasons — for decades the left has looked to the court to decree its agenda into existence — Chief Justice Roberts’ deciding vote, which caused many to scratch their heads, probably reflected the tendency of most “conservative” judges and legal scholars to just almost instinctively defer to the legislative.
Scalia and the other “conservatives” may have jumped off the bandwagon on this one because of the other central principle of “conservative” jurisprudence: federalism. After all, Obamacare for the first time in a major way got the federal government into insurance. Of course, federalism rightly triumphed when the court struck down the portion of the law requiring states to expand Medicaid.
While conservatives can at times almost absolutize federalism — in contrast to the stress on the principle of subsidiarity in Catholic social teaching, which is more flexible and realistic in acknowledging that activities at times have to go to the higher level — this was a welcome part of the decision, since along with the broad view of the commerce power federal grants-in-aid programs have for decades been the other main reason for the excessive expansion of federal power.
The confusion and turmoil resulting from the Obamacare law have already become almost legendary. Instead of such ready deference to Congress, the court’s “conservatives” should have rethought their longstanding view — forged, to be sure, with the good intention of trying to stop the judicial legislating embraced by their leftist colleagues and the classical liberal jurists of an earlier time — that they cannot strike down laws because the legislative branch acted unwisely or even bungled.
A statute whose meaning and contents “we’ll have to wait to learn about,” to paraphrase Nancy Pelosi, hardly meets any traditional legal or moral criteria for being a valid law. Moreover, the upheaval — the word is not an exaggeration in light of what has happened in the past several months — was foreseeable with this 2,700-page law whose parts do not even fit together well. The justices should have recalled what Federalist 78 said about the courts needing to act to ensure moderation. They have a role “in mitigating the severity and confining the operations” of “unjust and partial laws” and “to moderate the immediate mischiefs” of laws that have been passed.
So, contrary to the criticisms of some conservatives that the courts have no role in trying to correct social wrongs, Federalist 78 says they should go further than that and even respond to unjust laws.
The same excessive notions of deference to the political branches and federalism appear in the court’s U.S. v. Windsor and Hollingsworth v. Perry decisions of 2013 on same-sex “marriage.” While Windsor went against the norm of deference to the legislative, since it struck down a provision of the Defense of Marriage Act as it pertained to same-sex “married” couples in states that had legalized such “marriages,” it did so because of a convoluted deference to state decision-making (an absolutist view of federalism).
While the leftist justices were perhaps prepared to invent a fundamental constitutional right to same-sex “marriage,” most of the “conservatives” clearly were prepared to accept such a radical, unprecedented redefinition of marriage if states duly enact it. What we have is a leftist jurisprudence promoting immorality and a “conservative” jurisprudence of amorality. Something like same-sex “marriage” would have been as unthinkable to our Founding Fathers as the proposition that two plus two equals five.
This likely would not have been seen as a valid exercise of state power, any more than the federal government viewed Mormon polygamy in Utah Territory that way. Hollingsworth might be understood as a sweeping deference to state politicians — both legislators and executives — irrespective of the people’s wishes. Not only did it let stand a lower federal court’s overruling of Proposition 8 against same-sex “marriage” adopted by a citizen referendum, but it also allowed state officials to abdicate their responsibility to defend the law in court.
The people enacted a law that the officials didn’t want, and then would not allow lawyers representing the people to have standing to defend it. In effect, they amended the California constitution’s provisions on referenda by permitting recalcitrant officials to veto the people’s decision. Two “conservative” justices, Roberts and Scalia, were part of the majority, and doubtless some notion of federalism influenced their thinking.
This is deference with abandon. How does it square with Federalist 78’s insistence that “the power of the people is superior to both” the legislative and judicial branches — and Alexander Hamilton doubtless meant the executive, as well.
Further, contrasting these decisions and the court’s Lawrence v. Texas decision (2003) that legalized sodomy with Camreta/Alford — and Troxel before that — makes one see that a near-majority or sometimes majority of the court will, first, elevate ersatz rights to a greater importance than such fundamental traditional rights as those of parents and, second, afford special protections to groups whose status as disadvantaged minorities or categories of people at all is in question — not only are homosexuals on average in a better economic situation than the general population, but the evidence is that homosexual orientation is far from rigid and immutable — while it allows the family, a natural institution whose health is crucial for the state, to be imperiled.
At one time, early in the 20th century, the court held that parental rights trumped the state’s childrearing preferences. Now, if sexual liberties do not trump all else for the court, they are certainly high on the constitutional priority chart. In the Obamacare case, the court could not see its way to defending a majority against a public policy with truly serious implications for one of the most intimate of human concerns, physical health — and possibly (with the likelihood of rationing on the horizon) life itself.
Nevertheless, it was ready to give a self-styled minority — spearheaded by a juggernaut political movement — at least part of what it wants, even though this departed from age-old human understanding and has enormous social implications in the long-term.
Conservatives have been correct, by and large, to get the court to stop legislating. However, as I wrote in an article in the mid-1990s — which was republished in my book, The Public Order and the Sacred Order (2009) — one should not condemn “judicial activism” across the board. It depends on what is meant by the term. If judicial activism means creating ersatz constitutional rights, it is to be rejected.
On the other hand, it should be embraced if it means upholding traditional, clear constitutional principles when the political branches no longer want to do so, as we see in the Obama era — or even if it means resorting to the true natural law (as opposed to some imitator, such as the notion of substantive due process that in different eras has been the rationale for absolutist notions of private property and abortion rights) when necessary and when something in the black-letter Constitution cannot more immediately be pointed to. (The “conservative” Scalia probably refused to view parental rights as “fundamental” in Troxel because they do not appear in so many words in the Bill of Rights.)
After all, as the great constitutional scholar Edward S. Corwin and others showed, the Constitution came out of the natural law tradition. Nor is reliance on natural law an open door to judicial arbitrariness, as often claimed (especially by certain “conservative” jurists and legal scholars, many of whom have really bought into a positivist jurisprudence).
As Catholic legal scholar David Forte has written, the natural-law judge is more likely than the positivist judge to be restrained. At a time of unprecedented governmental intrusion into people’s lives and public officials who seem to think that traditional constitutional principles are outmoded, the courts may become an increasingly crucial institutional force to rely on.
All things being equal, a regimen of judicial deference to the political branches makes sense, but the times call for more careful discernment about when to defer and a reassessment of the view of Scalia-type judicial “conservatives” that traditional rights not specifically in the text of the Constitution or Bill of Rights are somehow not valid or fundamental.
Nor should they continue to think that respect for federalism means that anything should be allowed to go, even if it deeply offends the natural law and the norms of civilization, just because it was adopted at the state level.

Share Button

Comment on this Article:

Sources confirm Cardinal Burke will be removed. But will he attend the Synod?

Sources in Rome have confirmed to LifeSiteNews that Cardinal Raymond Burke, the head of the Vatican’s highest court, known as the Apostolic Signatura, is to be removed from his post as head of the Vatican dicastery and given a non-curial…Continue Reading

Catholic Education Honor Roll Announced

Today, The Cardinal Newman Society released the list of schools recognized by the Catholic Education Honor Roll as 2014 Schools of Excellence. Since 2004 the Honor Roll has celebrated quality Catholic education throughout the United States. Honor Roll schools receiving…Continue Reading

Hermeneutic of Continuity: Pope Benedict XVI’s 10 Step Guide to Vatican II

pope200

In 2005 His Holiness Pope Benedict XVI gave a Christmas address to the Roman Curia that sparked a “Holy Revolution.” The good pontiff’s comments were received as “epoch-making” by many of those faithful to Sacred Tradition.1 At the heart of…Continue Reading

Satanists Sell Out Controversial Oklahoma ‘Black Mass’ Event, Will Stage Exorcism Despite Christian Protests

The Satanist group that will stage a controversial “black mass” at an Oklahoma City civic center has said that all 88 tickets for its Sept. 21 event are sold out. The co-founder of the group revealed that the ritual will…Continue Reading

Catholic League Bowing Out Of New York’s St. Patrick’s Parade

NEW YORK –  The Catholic League says it will sit out next year’s St. Patrick’s Day Parade in New York because parade organizers aren’t letting an anti-abortion Catholic group march. Catholic League head Bill Donohue said Thursday that his organization…Continue Reading

Catholic Cardinal McCarrick Embraces Islam

Catholic Cardinal Theodore McCarrick offered Islamic religious phrases and insisted that Islam shares foundational rules with Christianity, during a Sept. 10 press conference in D.C. “In the name of God, the Merciful and Compassionate,” McCarrick said as he introduced himself…Continue Reading

MURDER OF CATHOLIC NUNS SHOCKS WORLD

The triple murder of three elderly Italian religious sisters in Burundi has their religious family and the local community reeling. The Italian Foreign Ministry has confirmed Monday’s death of a third missionary, Sister Bernadette Boggian, who wasdecapitated, according to a…Continue Reading

Cardinal Dolan and the St. Patrick’s Day Parade

by Hon. Bob Marshall Sept. 8, 2014 New York’s Cardinal Dolan, appointed as Grand Marshal of the 2015 St. Patrick’s Day Parade, praised the decision to allow an openly gay group to march in the St. Patrick’s Day Parade. “I have…Continue Reading

Founder: Catholic Studies programs help colleges fulfill call to faithfulness

St. Paul, Minn., Sep 8, 2014 / 06:03 pm (CNA).- University-level Catholic Studies programs are an essential response to the increasingly fragmented college experience, said the man who founded the first such program 20 years ago. “At the heart of…Continue Reading

A ‘dereliction of duty’? Catholics react to Cardinal Dolan’s role in St. Patrick’s Day Parade

Cardinal Timothy Dolan’s decision to act as grand marshal of the New York City St. Patrick’s Day parade despite its decision to allow an openly homosexual organization to participate has drawn strong criticism from Catholic writers and outrage from many…Continue Reading

Notre Dame Caves

notredame

The following comes from an Aug. 30 email from the Sycamore Trust, “alumni protecting Notre Dame’s Catholic identity.” Notre Dame is complying with the abortifacient/contraceptive mandate in renewing its student health insurance program for 2014-15. Aetna, the insurer, will now provide students with…Continue Reading

Vatican’s Cardinal Burke dismantles ‘Who am I to judge?’

burk

Cardinal Raymond Burke, head of the Vatican’s highest court – the Apostolic Signatura – has given a lengthy televised interview in which he decisively rectifies the false notions about Pope Francis’ “Who am I to judge” quote that has been…Continue Reading

Untitled 5 Untitled 2

Attention Readers:

  Welcome to our new website. Readers who are familiar with The Wanderer know we have been providing Catholic news and orthodox commentary for over 145 years in our weekly print edition. Now we are introducing the online daily version of our print journal.


  Our daily version offers only some of what we publish weekly in print. To take advantage of everything The Wanderer publishes, we encourage you to subscribe to our flagship weekly print edition, which is mailed every Friday or, if you want to view it in its entirety online, you can subscribe to the E-edition, which is a replica of the print edition.
 
  Our daily edition includes: a selection of material from recent issues of our print edition, news stories updated daily from renowned news sources, access to archives from The Wanderer from the past 10 years, available at a minimum charge (this will be expanded as time goes on). Also: regularly updated features where we go back in time and highlight various columns and news items covered in The Wanderer over the past 145 years. And: a comments section in which your remarks are encouraged, both good and bad, including suggestions.

 
  We encourage you to become a daily visitor to our site. If you appreciate our site, tell your friends. As Catholics we must band together to rediscover our faith and share it with the world if we are to effectively counter a society whose moral culture seems to have no boundaries and a government whose rapidly extending reach threatens to extinguish the rights of people of faith to practice their religion (witness the HHS mandate). Now more than ever, vehicles like The Wanderer are needed for clarification and guidance on the issues of the day.

Catholic, conservative, orthodox, and loyal to the Magisterium have been this journal’s hallmarks for five generations. God willing, our message will continue well into this century and beyond.

Joseph Matt
President, The Wanderer Printing Co.

Untitled 1

'From our friends at The Foundry'


Today . . .

Pope’s General Audience: The Church Was Born Catholic and Apostolic

pope308

“To be part of the Apostolic Church means to be aware that our faith is anchored in the proclamation and witness of Jesus’ Apostles themselves and, therefore, always to feel sent.” Vatican City, September 17, 2014 (Zenit.org) Here below is the full text of Pope Francis’ weekly general audience catechesis, delivered in St. Peter’s Square, September 17th.  Dear Brothers and…Continue Reading

Pope Tells Catholics To Go Forth With The Gospel Message

(Vatican Radio) Pope Francis encouraged Catholics go forth and bring the Gospel message to the world and to their communities. Speaking on Wednesday during his General the Pope spoke of the universal and apostolic nature of the Catholic Church. He explained that the word catholic means that she is universal, something that she shows by speaking all languages, which –…Continue Reading

Bluster And Bluff In The Baltic

By PATRICK J. BUCHANAN “I say to the people of Estonia and the people of the Baltics, today we are bound by our treaty alliance. . . . Article 5 is crystal clear: An attack on one is an attack on all. So if . . . you ever ask again, ‘who’ll come to help,’…Continue Reading

One Thing Hillary Clinton’s Memoir Doesn’t Explain About Benghazi

By TERENCE P. JEFFREY In her memoir, Hard Choices, former Secretary of State Hillary Clinton included a chapter on the attack on the U.S. diplomatic mission in Benghazi, Libya, on September 11, 2012. But she failed to specifically explain why Ambassador Chris Stevens was there that day. “U.S. ambassadors are not required to consult or…Continue Reading

Violence Begets Violence

By REY FLORES Is it me or is violence becoming more prevalent across our society? Is it because most people have a cell phone nowadays with a camera and are able to share these ever-increasing acts of violence across cyberspace on social media? Perhaps it’s a little of both, but it’s definitely a lot more…Continue Reading

Birth Statistics Show Collapse Of The Family

By TERENCE P. JEFFREY (Editor’s Note: Terence P. Jeffrey is the editor in chief of CNSnews.com. Creators Syndicate provided this column; all rights reserved.) + + + If you count a generation as spanning 20 years, then approximately 36 percent of the American generation born from 1993 through 2012 — which has begun turning 21…Continue Reading

Deacon Describes Last Hours… Convicted Killer In Prolonged Execution Was Baptized

By DEXTER DUGGAN PHOENIX — Although most news attention focused on the nearly two hours it took for a convicted Arizona double murderer to die during the execution by lethal injection in July, he had been baptized a Catholic not long before, according to a deacon who helped Joseph Wood prepare for death. Ed Sheffer,…Continue Reading

Advertisement

Our Catholic Faith (Section B of print edition)

Our Attitude Should Be The Same As Christ’s

By FR. ROBERT ALTIER Twenty-Sixth Sunday In Ordinary Time (YR A) Readings: Ezek. 18:25-28 Phil. 2:1-11 Matt. 21:28-32   In the Gospel reading today our Lord asks the question of which son did the will of his father: the one who said he would not go into the field but eventually did or the one who said he would go…Continue Reading

A Leaven In The World . . . “And Who Is My Neighbor?” The Embryo And The ALS patient

By FR. KEVIN M. CUSICK The prophet Jeremiah in chapter 20 bewails his isolation as a result of the scorn of nonbelievers: “The word of the Lord has brought me derision and reproach all the day.” He describes his temptation to throw in the towel as a prophet tasked by God with a message for mankind: “I say to myself,…Continue Reading

Priestly Celibacy: Unnatural? Or . . . Supernatural? Celibacy In The Teachings Of St. Paul

By RAYMOND DE SOUZA, KM Part 4 St. Paul was not one of the twelve, but he is known as “the Apostle,” certainly because of the richness of his apostolic zeal in teaching, possibly more than all the other apostles put together. He was educated in the faith by Jesus Himself, and after that intense training, he became as zealous…Continue Reading

The Implications Of Faith In One God

By DON FIER Over the past three weeks, we have reflected on but an infinitesimal fraction of all that the faithful affirm when they reverently and genuinely say the first four [or five] words contained in the Creeds of the Church: “I believe in [one] God.” In saying these words with heartfelt sincerity, one is acknowledging his belief in who…Continue Reading

Catholic Replies

Q. I have recently read a book entitled Constantine’s Sword by James Carroll. I was taken aback by its premise and wonder about its veracity. Do you have an opinion on the book? — E.J.S., New Jersey. A. You have good reason to wonder about the veracity of Constantine’s Sword (and the movie based on the book) since its author,…Continue Reading

Cast A Gauntlet – Sola Scriptura: Part 1

Catholic Heroes… St. Joseph Of Cupertino

By CAROLE BRESLIN Now that the school year has begun, students — especially Catholic students — will find recourse to their favorite patron saint of studying. Some may choose St. Thomas Aquinas or St. Augustine of Hippo. For those students who find it difficult to retain what they read and write about it, perhaps this saint will encourage them: St.…Continue Reading

Catholic Heroes… Mother Teresa Of Calcutta

By CAROLE BRESLIN After returning from a visit to Mother Teresa of Calcutta and giving a retreat to her Missionaries of Charity there, Fr. John A. Hardon, SJ, told a class of lay faithful, “Americans are living in a dream world.” He spoke of the thousands of people dying on the streets of Calcutta where Mother had begun her work…Continue Reading

What to Do If Your Boyfriend Wants You to Get an Abortion?

by Krisi Burton Brown | Washington, DC | LifeNews.com | 2/20/14 4:00 PM Washington, DC (LiveActionNews) — Note: This article is for any girl or woman who is feeling pressured into having an abortion. If you are a guy who is trying to find out how to stop an abortion, please see this article written for dads. 1.  Stand your…Continue Reading

It’s Time to Build Schools, from the Ground Up

February 13, 2014 by Anthony Esolen   It might have been worth repairing, if it had once been noble and beautiful, or at least conceived in an orderly way, for ordinary human purposes. But it wasn’t. It was constructed upon false principles. Its walls looked like those of a bad factory. It smelled like a warehouse. It could be terribly…Continue Reading

Why I am Pro-Life

February 4, 2014   Pro-Lifers   By Therese Recinella   Editor’s note. This tribute was posted on Therese Recinella’s Facebook account. She is graciously allowing us to reprint it in NRL News Today.   There are many things that I could say about my Dad, but what I want people to know is this: My parents faithfully raised 8 children…Continue Reading

Fathers . . . The Essential Role of the Father

Posted on February 10, 2014 by The Catholic Gentleman 13 Comments   Divorce rates skyrocketing; adultery rampant; non-married cohabitating couples; children abandoned by their fathers or mothers; “same-sex unions” adopting children and calling this the “modern family”; pornography invading homes, leading to powerful addictions and total alienation from other members of the family: all of this is a bird’s eye view…Continue Reading

How Much is One Billion Dollars?

This article appeared in the March 20, 1941 issue of The Wanderer. (Well, 70 years later we can add 15 trillion into the example.) Here’s a simple and homely illustration of what one billion dollars amounts to: Suppose we take an imaginary boy, aged 15 years, and assign to him the task of counting one billion dollars in one-dollar bills.…Continue Reading

Planned Parenthood

This article appeared in The Wanderer, April 3, 1941.  (WOW, Look what we have 70 years later.) A group which calls itself the National Committee for Planned Parenthood has begun a nationwide campaign to have the promotion of birth control included in State and national health programs. The committee—which, according to propaganda sheets reaching our desk has a branch in…Continue Reading

Questions of Non-Catholics . . . Answered by Father Richard Felix, O.S.B.

Reprinted from The Wanderer April 10, 1941 Why Does God allow us to be tempted? God allows us to be tempted so that we may prove our attachment to him and merit a higher place in heaven. Temptations are the lot of all men; they are the battle ground upon which heaven is won or lost. “The kingdom of heaven…Continue Reading