Although Justice Scalia often encouraged Christians to apply their faith in their everyday lives, he recognized that how to live out one’s vocation “depends primarily upon what one’s vocation is.” As he explained in this 1992 speech, his vocation as a judge barred him from indulging his Catholic beliefs from the bench. He ruled as he did on cases about abortion, for example, not because of his Catholic beliefs, but because of his legal philosophy. There is no Catholic way of being a judge, he explains, just as there is no Catholic way to make a hamburger, except to do it “honestly and perfectly.”
I am happy to join you this evening in celebration of the thirtieth anniversary of the Long Island Catholic. I am an appropriate speaker for the occasion, I suppose, since I am myself a Long Island Catholic. I grew up in Elmhurst, and as a child used to spend the major part of my vacations at a little summer cottage my grandfather had built a stone’s throw from here—in the days when Woodbury was still the country. At that time, of course, the Long Island Catholic did not exist; our paper was the Brooklyn Tablet. It is always good to come back.
When Monsignor Maniscalco invited me to give this talk, he specified the subject that you have printed on the program before you—“Personal Conscience, Public Person”—but he described at some greater length just what he meant that subject to embrace. I quote from his letter:
How one’s faith and one’s judicial obligations either reinforce one another or create a degree of tension or both; whether, indeed, someone who holds high office in a pluralistic society is able to fulfill the Church’s vision of the laity bringing Christian values to the world of which they are a part.
I always try to stick fairly closely to the text I have been assigned. This is a tricky one, but I will give it a try.
How one’s faith affects the practice of one’s vocation depends primarily upon what one’s vocation is. No matter how good a Catholic a short-order chef may be, for example, there is no such thing as a Catholic hamburger. Unless, of course, it is a perfectly made and perfectly cooked hamburger. That is, I suppose, one way in which the faith affects all vocations: when Christ said, “Be ye perfect, as your heavenly Father is perfect,” I think he meant perfect in all things, including that very important thing, the practice of one’s lifework. A good Catholic cannot be an intentionally sloppy worker—or to the extent that he is a sloppy worker, he is a less satisfactory Catholic. Jesus of Nazareth the twenty-nine-year-old carpenter had never put together a poorly made cabinet. Laborare est orare, the old monastic motto goes. To work is to pray. And to work badly is to pray badly.
But beyond this aspect of Catholic belief that affects all professions and occupations, how and whether one’s faith affects one’s work depends entirely upon what one’s work happens to be. In some occupations, certain connections are clear: A Catholic doctor cannot, consistent with his faith, perform an abortion or assist a suicide. A Catholic publisher cannot, consistent with his faith, market obscenity, libel, or pornography. But what about the area of “public life”—that is, the profession of government service—which is my assigned topic for this evening?
Let me talk first about the legislative and executive branches—I will discuss judges last. There are those who believe that it is wrong for an executive or a legislative official to pursue a policy that he deems desirable solely because of his religious beliefs. Indeed, there is at least one Supreme Court opinion suggesting that legislative action which is religiously motivated is unconstitutional. That seems to me quite wrong. The Free Exercise Clause of the First Amendment is violated when legislative or executive action is directed against others’ religious beliefs; but neither the Free Exercise Clause nor the Establishment Clause is violated simply because legislative or executive action pursues a policy that the lawmaker or executive considers desirable because of his own religious belief. It would be quite impossible to apply such a principle. The religious person—the truly religious person—cannot divide all of his policy preferences into those that are theologically motivated and those that proceed from purely naturalistic inclinations. Can any of us say whether he would be the sort of moral creature he is without a belief in a Supreme Lawgiver, and hence in a Supreme Law? I am reminded of G. K. Chesterton’s humorous poem entitled “The Song of the Strange Ascetic,” in which the narrator describes the sort of self-indulgent, lustful, power-seeking life he would lead if he were a heathen—ending each stanza, however, with the observation that Higgins is a heathen, and Higgins does none of those things! Higgins is a Scrooge-like, nose-to-the-grindstone, abstemious, teetotaling, utterly dull banker. The poem ends:
Now who that runs can read it,
The riddle that I write,
Of why this poor old sinner
Should sin without delight—
But I, I cannot read it
(Although I run and run),
Of them that do not have the faith,
And will not have the fun.
Besides the practical impossibility of distinguishing all religiously motivated social policies from those that would exist even without religious motivation, adopting the principle that religiously motivated government policies are un-American would require the rewriting of a good deal of American history. The primary impetus for the drive to abolish slavery was a religious one. Recall the words of the “Battle Hymn of the Republic,” which ends, “As He died to make men holy, let us die to make men free, While God is marching on.” The same is true of government laws prohibiting the manufacture and sale of strong drink, up to and including the constitutional amendment instituting Prohibition: mandated temperance was a religious cause. Religious motivation underlies many traditional laws still on the books, such as those against bigamy, or those proscribing public nudity. Societies with different religious beliefs manage well enough without them. Far from being a nation that has excluded religious-based policies from the sphere of government, official public expression of belief in God, and the adoption of policies thought by the people to be in accord with God’s law, have distinguished us from most Western democracies, at least in the current century.
Of course, to acknowledge that religiously based social policies are not ipso facto unconstitutional is not to affirm the opposite: that they are ipso facto constitutional (though there is no question, I think, of the constitutionality of laws regulating traditional areas of public morality—laws preserving bonos mores, to use the common-law expression). Moreover, to say that a religiously motivated law would be constitutional is not to say that it would necessarily be wise. Laws severely restricting civil divorce, for example, are constitutional, but surely it is a matter of prudence whether they will achieve more good than harm in a society with a large plurality that no longer shares the moral premises on which they were based. Of course at some point the moral imperatives are so overwhelming that there is no room for prudential compromise. One does not argue about whether it will do more harm than good to oppose laws permitting genocide. That is in essence the Church’s position regarding laws permitting abortion.
Mentioning the Big A (that is what the abortion issue is called on Capitol Hill) leads me quite naturally into the next part of this talk. Up until now I have been speaking about the relationship between religious belief and “public life” insofar as the legislative and executive branches are concerned. You will recall that I said at the outset, however, that how one’s faith affects one’s work depends upon what one’s work happens to be. The work of the judicial branch is fundamentally different from that of the legislative and executive—or at least it is fundamentally different as I view things. Unlike presidents, cabinet secretaries, senators, and representatives, federal judges do not (or are not supposed to) make policy, but rather are to discern accurately and apply honestly the policies adopted by the people’s representatives in the text of statutes—except to the extent that those statutes conflict with the text, the underlying traditions, or valid Supreme Court interpretation of the United States Constitution. Just as there is no Catholic way to cook a hamburger, so also there is no Catholic way to interpret a text, analyze a historical tradition, or discern the meaning and legitimacy of prior judicial decisions—except, of course, to do those things honestly and perfectly.
I find myself somewhat embarrassed, therefore, when Catholics, or other opponents of abortion, come forward to thank me earnestly for my position concerning Roe v. Wade. I must tell them that I deserve no thanks; that that position is not a virtuous affirmation of my religious belief, or even a sagacious policy choice, but simply the product of lawyerly analysis of constitutional text and tradition; and that if legal analysis had produced the opposite conclusion I would have come out the other way, regardless of their or my views concerning abortion. My religious faith can give me a personal view on the right or wrong of abortion; but it cannot make a text say yes where it in fact says no, or a tradition say “we permit” where it in fact has said “we forbid.” If my position on Roe v. Wade were a reflection of Catholic beliefs and policy preferences, then I would say that the Constitution not only permits the banning of abortion, but requires it. Imaginative judges have derived results much more implausible than that from the provision of the Constitution that says no person shall be deprived of life, liberty, or property without due process of law. In fact, however, the Constitution does not ban abortion any more than it confers a right to abortion, and no amount of religious faith or zealous enthusiasm can change that.
These remarks reflect, of course, a view of the Constitution as a document containing a fixed and limited number of specific guarantees that do not expand and contract from age to age (though of course they must be applied to new phenomena). That is the traditional view. In recent years, however, the American people seem to have become persuaded that the Constitution is not a fixed and limited text, but rather an all-purpose, shorthand embodiment of whatever they care deeply about. Do we abhor the burning of the flag? Why, then, it must be constitutional to criminalize it. Do we favor homosexual rights? Why, then, it must be unconstitutional to deny them. And so forth, through a whole list of passionately felt issues, down to and including both sides of the abortion issue. Never mind the constitutional text; never mind the tradition that underlies that text. We know what we want, and if we want it passionately enough, it must be guaranteed (or if we hate it passionately enough, it must be prohibited) by the Constitution! We cannot leave such issues to be decided by the democratic process; only unimportant issues belong there. The really significant, heartfelt issues are all resolved in the Constitution, whether the text says anything about them or not. And we will ensure that the Constitution means what we want it to mean by interrogating nominees to the Supreme Court concerning all the “unenumerated” rights that we care about, one after another—conducting a plebiscite on the Constitution, in effect, each time a new nominee is put forward.
How different this is from the traditional American notion of what the Constitution means—from the notion that prevailed until very recently—is evident from considering the Nineteenth Amendment, adopted in 1920, which provides that “[t]he right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.” No one doubted that a constitutional amendment was necessary for that purpose, even though, in 1920 as today, the Constitution forbade denial of “equal protection of the laws.” What could be more obviously a denial of equal protection than denial of the vote? But the Americans of 1920 understood, as the Americans of 1992 seemingly do not, that the vague provisions of the Constitution, such as the Equal Protection Clause and the Due Process Clause, are not invitations to constitutionalize our current desires from age to age, but rather bear a constant meaning that accords with the understanding of those terms when they were adopted. Standing by itself, the phrase “equal protection” can mean almost anything. As applied to distinctions between the sexes, it could be thought to require unisex public toilets and dormitories. Of course it does not mean that, because no one ever thought it meant that. So also (the Americans of 1920 understood) with respect to the right to vote.
The problem with making the Constitution an all-purpose embodiment of our current preferences—pro-abortion, anti-abortion, or anything else—is that it deprives the Constitution of its essential character as an obstacle to majority self-will and converts it (ironically) into a mechanism for placing the majority’s current will beyond further democratic debate. The danger of that development—and the consequent need to restrain yourselves from asserting that all your deeply held beliefs are constitutional imperatives—is the only moral I hope to leave you with this evening. It is a moral rooted in law rather than theology, so if you have awarded me for my theological skill, you have been greatly deceived.