Wednesday, May 2, 2007
Personal Asides: The Attack on Catholics on the High Court Woodrow Wilsonthe Worst Enemy Civil Liberties Had.
An influential law professor at the University of Chicago, Geoffrey Stone, has attacked the partial birth abortion decision by saying that the five-member majority consisted of Catholics who voted their churchs theological convictions and carried the day. The Catholics: Anthony Kennedy, Antonin Scalia, Clarence Thomas, John Roberts and Sam Alito. Retired Judge Robert Bork on television last night rebuked Stones view and said that it was an insult to the five. He added that jurists have the obligation not to vote their religious convictions in decisions but to apply the strict interpretations of the law. Bork is a Catholic convert of relatively few years duration.
My un-legal opinion for whatever its worth is in disagreement with Borksand I tremble at the officiousness with which I have the temerity to say I disagree. Were I a jurist, I would not knee-jerk by Catholicism to make court decisionsbut it would be apparent that if one is a philosophical Catholic of the old standard by which I was reared in a Thomist tradition in the late 1940s I would be shaped by that philosophy to the decisions I would write. For example, Aquinas teachings defeats relativism read: positivism in legal terminology at every point. Applying Aristotles dictum, Aquinas distinguishes three acts of the intellect: (a) apprehension, expressing itself in one concept or idea; (b) judgment, the simple cognitive action in which something is known to be in a certain manner or not to be so; and (c) discursive reasoning or ratiocination i.e. all men are mortal; John is a man; therefore John is mortal.
While the doctrine of natural law, knowable to the intellect and higher than the state or the people, is a Catholic belief at least as it was taught to us in college (1946-50_ it comes from Aristotle who wrote of natural justice and Cicero. However for practical purposes, the repository of that conviction is contained in Catholicisms philosophic embrace of natural law. Thats why Borks view that separation of law from religion may be specious. A true Catholic, schooled in philosophic principles as I was, is not able to approach jurisprudence without application of natural law that is endemic to Catholic philosophy. As I recall Bork who is many thingslegal scholar and intellectwas unsuccessful in jousting with Biden during Borks confirmation hearings. But then Biden is a quirky politician masquerading as an intellectual while Bork had the disadvantage in television back-and-forth of being a true intellectual. At any rate, he lost.
But attacks on the Catholic jurists for voting their churchs line are inaccurate. For one thing, I doubt if any of them were taught the philosophic grounding we were in our Aquinas classes.
All gratitude to my father who, while shaving while I was a tiny tot, inculcated in me the belief rooted now in perpetuity in my mind that Woodrow Wilson was an arch-enemy of our civil liberties. Abraham Lincoln had no recourse in the midst of a civil war and as soon as he overruled habeas corpus he asked for and received congressional approval as mandated by the Constitution. Wilson, who was not challenged by insurrection or anything remotely like it, was savagely uninterested in preservation of civil liberties as can be shown by the book Savage Peace, written by Ann Hagedorn [Simon & Shuster: 2007]. Imagine, Eugene V. Debs the socialist, a four-time presidential candidate, tossed into jail for 10 years by criticizing the draft! The German menace was listed as a reason; later it was the Red menace. Debs was freed by Warren G. Harding the same Warren G. Harding that Arthur Schlesinger, Jr.s lefty fellow college profs listed as a stupe while canonizing Wilson as the martyred architect of peace.
This hagiography spawned by Schlesinger found, miraculously, that all Democrats were great presidents: Wilson, FDR, Truman, JFK, LBJ. All Republicans were venal, dumb, corrupt notwithstanding what achievements they chalked up Harding who resurrected the bottomed out economy and ended insidious price controls Wilson had enacted Coolidge who gave the nation an enormously effective peacetime prosperity Eisenhower who understood the tension between waging a decisive Cold War and not plunging into war Reagan who won the Cold War. Still the lingering effects of the hagiography run on.