National Affairs Rory Leishman

National Affairs Rory Leishman

Should morally enlightened judges strike down any statute that sanctions pornography, abortion, or euthanasia?

The late, great Antonin Scalia did not think so. As a devout Catholic, he clearly understood that pornography, abortion, and euthanasia are unmitigated evils, yet as one of the most learned judges ever to serve on the Supreme Court of the United States, he insisted that it is not unelected judges, but elected representatives of the people who have the constitutional authority and the moral obligation to eliminate immoral statute laws.

As a general rule, Scalia held that judges should not legislate from the bench, but stick to upholding the plain words of the laws and the Constitution as duly enacted and originally understood.

On this basis, Scalia voted time and again as a Supreme Court justice to reverse Roe v. Wadeand other similar judicial errors which purported to discover an implicit right to abortion hidden in the United States Constitution. However, that is as far as Scalia was willing to go on this subject. In a May 2002 First Thingsarticle “God’s Justice and Ours,” he maintained: “If a state were to permit abortion on demand, I would – and could in good conscience – vote against an attempt (by the Supreme Court) to invalidate that law for the same reason that I vote against the invalidation of laws that forbid abortion on demand: because the Constitution gives the federal government (and hence me) no power over the matter.”

On this point, Adrian Vermeule, a professor of law at Harvard and a recent Catholic convert, fundamentally disagrees. In a controversial article inThe Atlantic, “Beyond Originalism,” he argues that Scalia was wrong to hold that judges, as judges, have no authority to rewrite the laws and the Constitution to conform with their judicial understanding of morality.

According to Vermeule, the problem with judicial activists on the Supreme Court of the United States over the past 60 years is not that they legislated from the bench, but that they did so by imposing a wrongheaded, “conventionally left-liberal” set of “substantive moral commitments and priorities” including legalized abortion on demand and same-sex marriage.

In contrast to Scalia, who opposed judicial activism in principle, Vermeule favors judicial activism, but only as practiced by enlightened judges who take “a robust, substantively conservative approach to constitutional law and interpretation” that includes “a candid willingness to ‘legislate morality’.” Although Vermeule does not say so explicitly, it is clear from the tenor of his argument that he, unlike Scalia, thinks conservative judges should have no compunction about amending or striking down any constitutional provision or statute law that permits induced abortion, euthanasia, same-sex marriage or any other transgression of the divinely sanctioned natural moral law.

What should we make of this argument? Russell Hittinger, Warren Chair of Catholic Studies and Research Professor of Law at the University of Tulsa, sides with Scalia. In The First Grace: Rediscovering the Natural Law in a Post-Christian World, Hittinger argues that under some extreme circumstances, a judge should resign rather than uphold an evil law, but “the judge, insofar as he is a judge, is not entitled to plough ahead and substitute his own law for that of the legislator, whether the legislator is divine or human.”

Apart from this debate over the limits of judicial authority as defined in natural law, how practical is Vermeule’s proposal? Is it likely that the Supreme Court of the United States, which now consists of four left-leaning judicial activists and five originalists in the Scalia mould, will end up any time soon with a majority of conservative judicial activists dedicated to imposing the fundamental principles of the natural and divine moral law?

Obviously not. If anything, Vermeule’s advocacy of judicial activism could play into the hands of liberal pro-abortion judges who might soon reconstitute a majority of the Supreme Court of the United States if Joe Biden, that shamelessly pro-abortion Catholic, wins the presidency.

Be that as it may, it is noteworthy that by working through the democratic process rather than relying entirely on the courts, pro-lifers in the United States have made considerable legislative and judicial progress in many areas of the country in recent years. These pro-lifers, and their beleaguered counterparts in Canada, should continue to do the same – strive for democratic, legislative change, confident that in the dominant court of public opinion, the truth is bound eventually once again to prevail that all human beings have been endowed by their Creator with an inalienable right to life from conception to natural death.