Bench Memos

Re: The Seamless Garment – Again

I’m pleased that the letter from the head of the U.S. Conference of Catholic Bishops to the President on the Supreme Court vacancy gave pre-eminence to abortion. But I would add to Gerard Bradley’s criticism the fact that the letter displays not the slightest understanding that the role of a justice in the American constitutional republic is distinct from that of a legislator. Simply put, it is not the proper mission of justices, Catholic or otherwise, to “support the protection of human life from protection to natural death” or to “favor restraining and ending the use of the death penalty.”

Roe v. Wade is wrong because the Constitution does not speak to the issue of abortion, not because Catholic teaching condemns abortion. The constitutional obligation of every justice is to restore the issue of abortion regulation to the political processes, not to impose a “pro-life” ruling that the Constitution itself somehow prohibits permissive abortion laws. Conversely, the death penalty is broadly constitutional, and justices should not rule otherwise, irrespective what Catholic teaching says about the morality of the death penalty.

Am I hostile to Catholic moral teachings? Not at all. Indeed, quite the contrary. But in our political system it is Catholic legislators and citizens, not judges, who have the right and obligation to promote the Catholic vision of justice. The reversal of Roe is necessary to enable Catholic legislators and citizens to persuade their fellow citizens to enact legislation that provides significant protection for the lives of unborn human beings. And Catholic legislators and citizens are already free to implement their understanding of additional limits that ought to be placed on the death penalty.

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