Thursday, March 05, 2009

The Problem(s) with Douglas Kmeic's Latest


Let me preface this by saying that I agree with Douglas Kmeic when he says that it is possible for a Catholic to support a pro-abortion politician in good conscience, even one as radically pro-abortion as the current President of the United States.

I also think that the Catholics who voted for Obama were gravely mistaken, that they made the wrong decision, based on a faulty moral calculation, and that their failure is likely to aggravate the unspeakable moral calamity and human catastrophe of legal abortion in the United States.

There is a difference between being making a mistake in prudential judgment - even an appallingly grave one - and commiting a mortal sin.

I am firmly convicted of the wrongness and wrong-headedness of the rationale behind a faithful Catholic's casting of his ballot for Obama, but I do not think Catholics who voted for Obama are necessarily going to hell for it.

That said, I move to criticize Prof. Kmeic's recent remarks in Time magazine.

The basic premise of his argument is improbable, indeed incredible. The Pepperdine professor argues that "the Vatican" has changed its position vis a vìs the tension between Catholic judges' moral responsibilities as human beings and citizens, and their responsibility faithfully and correctly to execute the duties of their office. "The Vatican" has not spoken to this specific point in a binding manner, and so cannot change what it never had, i.e. an official, binding position on the matter. Even supposing "the Vatican" should have such a position, it is beynd cavil to suggest they would make it known by applying it, unannounced, in a press release.

To show that the Vatican has changed its position, the professor quotes from a 2001 First Things article by Justice Scalia, thus raising the question as to when, precisely, Justice Scalia's personal opinions became an acceptable proxy for, or evidence of, or grounds for inference regarding real or supposed official positions of "the Vatican."

Prof. Kmeic seizes on the term, "jurists", arguing that, perhaps, the authors of the English translation of the release did not know that the term refers to judges. This line is not only false in fact - "jursits" refers to legal professionals at the bar and on the bench, and I cannot bring myself to believe that a lawyer and law professor does not know this - it also tends to defeat, or at least severely weaken his earlier argument: professor Kmeic would now ask us to believe that an inaccurate translation of a press release effected a change in official Vatican policy, praeter intentionem legislatoris.

If this were not enough, let us for a moment suppose that there were nothing exceptionable and everything credible in prof. Kmeic's expressed understanding of the term and the process by which it came to appear in the English translation. Now, let us revisit the operative section of the press release:

His Holiness took the opportunity to speak of the requirements of the natural moral law and the Church's consistent teaching on the dignity of human life from conception to natural death which enjoin all Catholics, and especially legislators, jurists and those responsible for the common good of society, to work in cooperation with all men and women of good will in creating a just system of laws capable of protecting human life at all stages of its development.

This language in no way requires Catholic judges to abandon restraint and embrace activism from the bench. Enjoining all Catholics and especially legislators, jurists, etc., "[T]o work in cooperation with all men and women of good will in creating a system of laws, etc.," simply repeats what the Church has always taught. Essentially, while Justice Scalia is correct in saying that judges bear no moral responsibility fo the laws that society has failed to enact, it were also correct to say that judges are citizens and therefore members of society.

Then, since judging the law is different from creating a system of laws, the entire line of argument is utterly fatuous, anyway. There are dozens of ways in which people who are judges may help in achieving the latter, without misusing their power to do the former.

Since these things are so, there is no other word, but, "idiocy" with which I might faithfully and honestly describe my estimation of Prof. Kmeic's thesis, no other word but "imbecilic" to convey my consideration for his arguments therein presented as supports for his thesis.

I wish to make it very clear that I have chosen my terms with scientific exactness, and in a spirit utterly devoid of polemical intent: the idiotes is the private man, the one unfit for or incapable of participation in public life; the imbecile is one without power, force, strength, and lacking in all energy. I do not think that prof. Kmeic is an idiot or an imbecile: I mean only to say that his Time remarks are utterly devoid of persuasive power and entirely unworthy of public consideration.

1 comment:

Clayton said...

The mind is designed to discover the truth and surrender to it, not to defend itself against truth...

One of the organizational hazards of being a lawyer, I suppose...