Denver Newsroom, Oct 4, 2020 / 05:11 pm (CNA).- The nomination of Amy Coney Barrett to the United States Supreme Court would make her, if confirmed, the sixth Roman Catholic on the nine-person court.
While this is deeply concerning to some – and a reason to celebrate for others – both canon and civil lawyers told CNA that the Catholic legal tradition has much to offer the United States.
The Catholic Church has already contributed much to the United States’ legal system – including “the whole idea of law in general,” Fr. Pius Pietrzyk, OP, told CNA.
Fr. Pietrzyk practiced corporate and securities law in a large Chicago law firm before joining religious life, and he currently serves as a member of the board of directors of the Legal Services Corporation. He is also a canon lawyer and professor at St. Patrick’s Seminary & University in Menlo Park, California.
“It’s the development of canon law (the law that governs the Church) that gives both the United States and Europe their modern notions of law,” he said.
While aspects of canon law were present since the early days of the Church, the use of the term ‘canon law’, as rules and laws governing ecclesial matters rather than civil ones, started around the 12th century, according to New Advent. While the code of canon law has been updated numerous times, it is the longest still-functioning rule of law in the West.
“Even the idea of a professional legal class, that is of lawyers, finds its root in the professionalization of law and the development of the Church’s canon law, in the 12th century. Just the fact that there is a legal profession is something that is owed to the Church,” Pietrzyk said.
More generally, he added, the Catholic tradition has always understood that faith and reason work together. They are, as Pope St. John Paul II wrote, “like two wings on which the human spirit rises to the contemplation of truth; and God has placed in the human heart a desire to know the truth—in a word, to know himself—so that, by knowing and loving God, men and women may also come to the fullness of truth about themselves.”
Stephen Payne, dean of the Columbus School of Law at The Catholic University of America, said it is this emphasis of reason in the Catholic tradition that makes Catholics good lawyers and judges.
“God is the creator of reason and law is an important field in which human beings seek to apply reason for the common good,” he said.
“It’s that commitment to reason that is an especially important contribution Catholic judges and lawyers…can make in today’s environment, in which many people on both sides of the political spectrum seem to prefer to decide important questions by sheer force of power guided by appetite, or emotional sentiment, through a process that involves attacking other people and attempting to undermine their God-given dignity,” Payne added.
Pietryzk said that the Catholic Church has also always strongly prized education, because of its understanding of how faith and reason work together.
“Education is something that’s very important, particularly the United States. When a new group would come from whatever country to America as Catholics, they built the church and built the school, usually together,” he said.
There are many aspects of the U.S. law and the legal process that also find their roots in canon law, Pietrzyk said, such as the idea in corporate law that entities sometimes have rights like persons would, or the idea of due process.
“People condemn the Inquisition, but the Inquisition was a step above the civil courts because there was real, procedural due process with the Inquisition that just didn’t exist in secular law,” he said.
Payne said he sees a Catholic influence in U.S. law with respect to some issues of social justice, especially as they are treated in Pope Leo XII’s encyclical, “Rerum Novarum” and other works by the three most recent popes.
Their writings on social justice have had “a significant influence on how many people, at least in our country, think about social justice, especially in such arenas as helping the poor, healthcare, immigration, abortion, end of life, workers’ rights, the death penalty, and so on,” he said.
Payne added that the U.S. legal system also includes ideas that come from natural law, a concept emphasized in the Catholic tradition that has roots in the thought of St. Thomas Aquinas and even further back to Aristotle.
According to the Catechism of the Catholic Church, natural law is “present in the heart of each man and established by reason….It expresses the dignity of the human person and forms the basis of his fundamental rights and duties.”
“Our break with King George III was justified on natural law grounds, and many of our constitutional rights and much of our common law was founded in and flows from natural law and natural rights,” Payne said.
Furthermore, Payne said, “the Catholic intellectual tradition and Catholic social teaching have a great deal to say about the common good and the dignity of the human person. And a significant part of that focuses on the natural law, and how seeking the common good enables individual human beings to flourish in community.”
In a way, Pietrzyk said, the Catholic understanding of human dignity is reflected “in the Declaration of Independence. ‘We hold these truths to be self evident, that all men are created equal and they’re endowed by their creator with certain unalienable rights.’”
“This is a very Christian idea,” he said. “As much as we talk about the common good, there’s still a reality to the individual value and the dignity of the person and that the person has rights. Not simply because he’s a citizen of a particular country, but simply because he’s human and that human nature itself, whether born or unborn, endows that person with rights. Modern progressivism in some ways assumes that without understanding it.”
Modern progressivism “collapses” as a philosophy, Pietrzyk said, because it lacks “a coherent sense of a human person. It’s really just this sort of naked kind of freedom, or I would say autonomy.”
Conor Dugan is a Catholic attorney who practices in Michigan. He said the conflict between the Catholic understanding of the human person and the modern progressive understanding of the individual is due to the U.S. founding fathers, who mostly held Enlightenment principles and ideas, such as those from English philosopher John Locke.
The American legal system takes a Lockean view of people as individuals with rights, “which doesn’t necessarily nestle the person in a community,” Dugan told CNA.
On the other hand, Catholics understand the human person as someone who is always in relationship – to God, to others, to himself – and therefore while a person has rights, he also has responsibilities, Dugan said.
“It’s almost like the individual becomes atomized” in the U.S. legal system, he said, and “an individual who is cut off from all those things just has a packet of rights and no responsibility.”
Pietrzyk said an example of this Lockean understanding of the individual can be seen in U.S. law under the 2015 Supreme Court case, Obergefell v. Hodges, which effectively legalized same-sex marriage nationwide.
That decision demonstrated “a strong belief in an individual’s rights to marry whomever he wants, regardless of the nature of the institution or the nature of the person. It’s this raw exercise of will, but disconnected from any reality or any nature or anything like that,” he said. “It has no rational core to it.”
The concept of the common good, while mentioned in passing by some U.S. lawmakers, is another area where Catholic lawyers and judges may be able to have an impact, Dugan noted.
“I wonder if that’s something that Catholics can do, is try to bring about a deeper understanding of the common good,” he said.
“None of the Constitution makes sense, unless we have (human dignity and the common good) as a background assumption. And maybe we should make it more explicit at times so that people understand that that’s what the law is for – it’s to protect and to foster the common good, and to protect and ensure the dignity of human persons.”
Pietrzyk noted that it is law that makes a common good possible.
“Pope Francis has talked about this…the importance of the common good, which law helps to preserve. We don’t define our individual good over and against the common good as if the two are in opposition to each other, but our individual good is able to flourish…is only able to reach its fullness with the common good, and that includes the law,” he said.
“We as human beings cannot flourish outside of a society with the common good. And we cannot flourish outside of society that does not have law. It’s law that makes freedom possible. It’s law that makes liberty possible. And it’s precisely within the Church’s legal tradition, that the charismatic side, that is the side of grace, can really flourish.”
Because the United States was not founded explicitly on Catholic principles, Dugan said it makes sense that Catholic lawyers and judges would feel a tension between their religious beliefs and the law of the land.
“I think Catholics in America, and especially Catholic lawyers should feel a tension at times between their faith and the law,” he said.
“And that that’s not necessarily a bad tension. It can help us to offer the contribution [of the Catholic legal tradition] to the world. Because I think we can fill out and make more robust, the good things that are there in the American Constitution, or we can help [them] serve and fulfill their promise,” he said.
Amy Coney Barrett’s Catholicism has been a point of criticism since her 7th Circuit Court of Appeals nomination hearing in 2017, when she was accused of “the dogma living loudly” within her, to recent articles debating – and debunking – whether People of Praise, the charismatic movement to which Barrett belongs, was the inspiration behind the dystopian novel and T.V. series, The Handmaid’s Tale.
Payne said he was not sure why there has been such a sharp focus on Barrett’s religious convictions as a possible problem, since everyone in the field of law brings their own personal views or values to the table.
“I’m not sure why, from an objective point of view, there should be such a focus on the religious commitments of the candidates, especially in a country whose constitution is so clear about the human value of religious liberty,” Payne said.
“Belief in God is well supported by reason, though many in our culture think it’s contradicted by it. In any event, many people who are not religious hold the values they do have very securely and apply them to important decisions in their lives and in their work.”
Pietryzk said that rather than recusing themselves from pertinent cases, it should be the role of Catholic judges or lawyers to bring their understanding of the human person and the common good into their work.
“As Catholics, we understand that human beings are created with a nature, created by God with a nature,” he said. “And discerning what the proper rules are for human beings given that nature is historically part of the work of judges.”
He added that while he does not know Barrett personally, they have many friends in common.
“I do know lots of people who know her and every good thing you hear about her reputation, I’ve heard for a long time,” he said. “She is just an extraordinary woman by everybody’s account.”
Dugan, a former student of Barrett’s, said he thinks that as Catholics and as Americans, “we’ve hit the jackpot” with her nomination to the Supreme Court.
“It’s hard for me to imagine anyone having a negative thing to say about her,” he said.
“I went back and looked at some emails we exchanged over the years, giving me career and family advice, how to navigate the tensions of a busy practice with family and things like that…I just think we’ve gotten a real gift in this nomination. I hope she’s confirmed.”
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“Far more permissive”?
Hmh.
Do you mean “Far more deadly”?
Or, “Far more murderous”?
Or maybe even, “Far more horrifying”?
Unless things have changed recently, Canada has no laws whatsoever regulating feticides.
When the Supreme Court overturned Roe, via the Dobbs Decision, they made abortion an issue for the States, which it was pre Roe for most of our History. The overarching judicial philosophy of Originalism, accounts for this. Having kicked the issue back to the States, this Court is not going to approve a national ban. The author of this article does not seem to grasp this simple fact.
Perhaps not the current Supreme Court & perhaps not today but if things follow the same course that other human rights reform movements have followed, we can look forward to some sort of national ban in the future.
For now, state by state is much better than no reforms at all. Little by little, inch by inch.
Who knows what a Supreme Court 50 years in the future might do, but this current Court seems intent on States Rights and Originalism. Attempting a national ban now is a waste of time. Yes, state by state is what is happening in the foreseeable future.
There must be exceptions for life of the mother. She should not be in septic shock and almost dead, before proper treatment is provided. Some rabid red state legislators seem to want to define this as narrowly as possible. Ditto for proper treatment of ectopic pregnancies and miscarriages. We seem to have a problem with rabid red state legislators second guessing doctors. Many OB-GYN’s are leaving red states due to the insanity there.
No physician wants to lose their license nor face malpractice. Medical protocols must be followed to avoid those and there are protocols in place for ectopic pregnancies and miscarriages.
Doctors are wary of some red state, rabid prosecutor itching to arrest a Doctor over a judgement call. Many OB-GYNs are leaving red states for this reason. Problem pregnancies are not as rare as right wing propagandists say, and rabid red state legislators should not be playing doctor.
Are the medical protocols in place sufficient to protect against grandstanding prosecutions?
Abortion is murder. It is only permissible (i.e. double effect) if necessary to safe the life of the mother that is in immediate danger. My understanding is that such circumstances are very rare. Still, it is doubtful that even indirect abortion is without negative health consequences.
Anything outside of the above isn’t law.
It is the duty of the civil authority to protect the rights of those within its jurisdiction against violations. For it to tolerate, such an evil is evil. It is complicity with murder.
Complicity with a wrong can even extend to a failure to provide information to law enforcement. I have seen a movie to this effect which illustrates this principle. It is “The Man Who Knew Too Much” (1956) LOD Rating: A-I.
Are you a board certified OB-GYN? You don’t know what you are talking about.
Dost thou?
I am not an OB-GYN, but I don’t spout right wing claptrap like Shawn.
Someday allmost all, if not all, States will legalize abortion in their individual Constitutions. Americans pride themselves (emphasis on pride) in doing all things well. Even death.
One way to reduce the number of abortions would be to insist on gender equality. The father of the unborn should have the very same rights as the mother. The baby is just as much his as it is the woman’s. The law should forbid killing the baby if either parent wants to save the baby. To do otherwise is clear sexual discrimination against males.
It is a myth and nonsense to say that men do not suffer because of the murder of their child. It is not uncommon that men can suffer the loss of their child for the rest of their life.