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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“Reform”??? Do they mean by that a continuation of the open border policies of the Democrats? Responsible for the drug and crime deaths of so many Americans? Because I dont recall hearing them making such calls for reform while 20 million unidentified illegals poured into the country.
Bishops lead sheltered lives in many respects. Do they understand that AMERICANS are struggling to make ends meet while our tax dollars go to provide luxury hotel rooms, food gift cards and free cell phone to illegals? That until Trump took office and closed the border, there were not any rooms in homeless shelters for AMERICAN families and veterans because they were stuffed to the gills with the poor of other nations? Along with creating a massive tax burden, illegals arriving in uncontrolled numbers create a compromised and overburdened school system and a medical system which is starting to resemble those in socialist nations. Limited facilities providing limited treatment by necessity because they are overburdened with TOO MANY PEOPLE. There are too many demands on the medical system and not enough doctors or facilities to treat them. Of course Americans HAD an adequate medical system, until illegals arrived by the millions in a short time frame. I have heard medical personnel tell me that illegals arrive at our US hospitals directly from the airport carrying their luggage, as our US hospitals legally cannot refuse them service. Those hospitals CAN however, go bankrupt, depriving some small communities of their only hospital.
I dont imagine that the Bishops have any sense of reality about this, fixated as they appear to be on conflating Catholicism with some Marxist fantasy of equity. I would enjoy hearing them take to task the HOME NATIONS of these illegals, whose GENIUNE responsibility they are. Maybe they should concentrate on fixing the problems within the church ( like getting more folks in the pews) before they start telling our politicians how to run the country.
LJ, my sentiments exactly.
U.S. and Mexican bishops think we have a “duty” to revise our border policy? I think the bishops should stop talking about revising the law and get back to saving souls. I am now 80 years old and do not not recall any effort in my lifetime to revise immigration law. Perhaps the bishops should propose something specific, and then we can see if the American people agree.
Are they going to beat a dead horse until the opposition to open borders relents? Bishops, don’t you have flocks that need tending to?
VERY well said, LJ. Would that the collective USCCB would read your comments and deeply reflect on them.
Imagine this group of U.S. and Mexican bishops, standing there together, believing that they are exercising influence and clout over the United States government on the subject of immigration. I don’t know enough about the Mexican bishops to say much about them. But the U.S. bishops who have gotten themselves deeply enmeshed in immigration-related federal grants, contracts and massive “cooperative agreements” have been compromised by their decades of involvement in these worldly matters. They have focused on “helping the strangers” by attempting to solve their problems by “fixing” their material conditions. Occasionally, a bishop will also address their spiritual needs, such as Archbishop Joseph Naumann, but most of what I see focuses on supporting their material needs by allowing them to move to a more prosperous country. That, I believe, is a sign of the corrupting influence of relying on federal funding for years and years, because of the numerous restrictions placed on how funds can be used.
I suppose their thinking is that, as they speak out, the members of their dioceses, along with Cathollics at large, will rally around them and contact their Senators and Representatives to demand a change in immigration policy and law. I’m sure that some American Catholics, such as the ones who ardently supported Joe Biden, are doing that, but they won’t be enough.
At some point, the bishops of the United States need to realize that over the course of tbe past few decades, many Catholics have come to mistrust many of them, especIally when they are acting as a group. (And I won’t go into the many reasons for that, because they are familiar by now.) Yet they keep behaving as though most American Catholics do trust them, such as when they gather together to make these declarations.