January 27, 2019
If the relationship between the modern secular state and the modern religious group (Church) is most neuralgic in the voting booth, it is utterly absent in the world of modern judicial doctrine and processes.
This is not meant to be a rant against the Supreme Court of the United States or any judge or group of judges.
The Constitution of the United States applies directly to citizens of the USA. It applies to non-citizens only to the extent that they interact with the citizenry. And citizens are defined as those who are born to citizens, born in the territorial USA or naturalized. The unborn, the foreign national and the non-legal alien, have no constitutional rights. They may have human rights and moral duties, but these lie outside the purview of US law.
The Canon Law of the Catholic Church applies to those who are baptized into it or are connected to the baptized in some way, and those who are received into full communion with the Church (converts, for the oldsters). The unborn, the unbaptized, non-Catholics, pagans, and atheists have no canonical rights or obligations. They may have human rights or moral obligations, but these, too, lie outside the purview of ecclesiastical law.
However, every legal system has a judicial system that will allow those covered by the laws of the community to vindicate their rights, to receive compensation in the wake of damages and to enforce his or her rights in the face of an attempt to abridge those rights. If there are enough interested people, we can devote some time to the notion of rights and duties in Canon Law. But I want to point out a peculiar thing about the courts of the United States.
‘Legislation from the bench’ is a loaded expression that takes exception to the judicial practice of decreeing what must be done or no longer done if someone can make a case that his or her or their (a group) have been denied some right or other that is guaranteed by the Constitution or earlier court decisions or by the ‘shadows’ cast by either. Such ‘legislation’ gets its bad name from the power of five people to create new obligations on a whole society or for a relatively small group of citizens, or to overturn centuries of ‘consensus’ of the meaning of certain fundamental social institutions.
Notice the number – five. Not millions of voters or even 51% of the legislators who answer to the millions of voters; five.
I would not like to overturn Brown v. the Board of Education. I would love to overturn Roe v. Wade. But we own both to the unique and uniquely powerful institution that is the Supreme Court of the Unites States. Applause and hisses for the nine!
No wonder the Supreme Court is the gladiatorial arena of our time and the best show on primetime! No wonder it is the preferred forum in which to debate and vindicate issues that lack the ‘traction’ or ‘popular support’ to carry the day elsewhere.
Really and truly and judiciously yours,