Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Tuesday, September 17, 2013

Happy Constitution Day?

Today, September 17, is Constitution Day. I think that the Constitution is worth celebrating, but I also worry that this "holiday" feeds into a problematic understanding of the Constitution as sacred. The Constitution is our fundamental law, but it is positive law; it is not sacred. Yet the idea that the Constitution is sacred is taken seriously enough that the Casey plurality, for example, concludes its opinion using quasi-theological "covenant" terminology:

Our Constitution is a covenant running from the first generation of Americans to us and then to future generations. It is a coherent succession. Each generation must learn anew that the Constitution's written terms embody ideas and aspirations that must survive more ages than one. We accept our responsibility not to retreat from interpreting the full meaning of the covenant in light of all of our precedents. We invoke it once again to define the freedom guaranteed by the Constitution's own promise, the promise of liberty.

The idea of the Constitution as a covenant is not inherently problematic, but it is when used to prop up the authority of a Supreme Court that serves as what Steven Smith has described as an anti-Magisterium. Smith's description of the "aggressively Catholic and radically Protestant" self-understanding of the Supreme Court is worth pondering this Constitution Day. Near the conclusion of his paper, The Supreme Court as (Anti)Magisterium, he writes:

We might say, then, that the Casey Joint Opinion was both aggressively Catholic and radically Protestant in its presentation of itself, the nation-church, and the constitutional orthodoxy. The opinion contemplates a nation that is institutionally Catholic--in which one institutional body (namely, the Supreme Court) has ultimate authority to say what is orthodox and what is not. Indeed, the fact that some citizens have been so obstreperous--so faithless, really--as to question that authority, or at least to question the correctness of the Court's past pronouncements, is cited as an additional reason for the Court to stand firm in maintaining what it has previously said, lest its monopoly on the orthodoxy-declaring prerogative come to seem vulnerable, and lest those who have trusted in the Court should have their tender faith betrayed. But the substantive content of the orthodoxy declared by the Court holds that on the most central questions, nobody--nobody in government, at least--gets to tell us what is orthodox; like it or not, we each must figure that out for ourselves.

Smith goes on to question whether it is really possible to separate "ecclesiology and substantive doctrine" in this way. He asserts that "[i]nsofar as we are skeptical about the separation, the Catholic-Protestant conflation of Casey will seem not a hybrid but rather a mongrel--a monster, perhaps. And the Court's attempt to seize the role of (anti-)magisterium will seem destined to promote not legitimacy and unity but rather confusion, resentment, and the very fragmentation that a magisterium is supposed to avoid."


Walsh, Kevin | Permalink


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Actually, what the Court has done is rendered onto Caesar, what belongs to God. Our Founding Fathers recognized that it is a self evident truth that from the moment of our creation, which is not the moment we become viable or the moment we are born, God has endowed every human person with their unalienable Right to Life. The act of abortion is not just unChristian, it is unAmerican.

Posted by: Nancy | Sep 18, 2013 9:56:50 AM