Tag Archives: justice

Scalia Speaks: Reflections on Law, Faith, and Life Well Lived

Antonin Scalia
Crown Forum, 418 pages
Distributed by Ignatius Press (www.ignatius.com)

 

The late Justice Antonin Scalia brought to the U.S. Supreme Court a keen intellect, a sometimes sardonic wit, and a judicial perspective known as originalism – that the Constitution should be interpreted in accordance with its original meaning as intended by its framers. This articulate and entertaining book collects his best speeches into thematic groups to present a stirring overview of this great jurist’s thought. Of special note are his ideas on faith and work – in particular, his speech on “Faith and Judging” should be read by every Catholic. It’s a great volume for seeking clarity in an age that has seen an excess of judicial activism.

 

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Seeking Justice For All Under The Constitution

Brett Kavanaugh, who was heading toward Senate confirmation at press time, would be one of five Catholic justices on today’s Supreme Court.

Kavanaugh, 53, until recently had been a judge on the Washington D.C. Circuit Court of Appeals. If confirmed, he will succeed Justice Anthony Kennedy, also a Catholic, who was often a swing vote in many of the high court’s closely decided decisions.

During the heated question-and-answer exchanges during September’s confirmation hearings, Kavanaugh’s mere use of the phrase “abortion-inducing drugs” was enough to incense abortion advocates. But when all was said and done, the hearings didn’t alter his trajectory.

In introducing Kavanaugh during a White House press event on July 9, President Donald Trump praised him as “a brilliant jurist” with “impeccable credentials, unsurpassed qualifications, and a proven commitment to equal justice under the law.”

A JUDGE WITH GREAT DISTINCTION

“For the last 12 years, he has served as a judge on the D.C. Circuit Court of Appeals — with great distinction — authoring over 300 opinions, which have been widely admired for their skill, insight, and rigorous adherence to the law,” President Trump said.

Kavanaugh has served on the D.C. Circuit Court since being confirmed 53-36 by the Senate in 2006. Prior to that, he clerked for Kennedy and served as a staff secretary and senior associate counsel for President George W. Bush.

Legal commentators have described Kavanaugh as a well-respected federal judge with a philosophy of interpreting the Constitution as it is written.

“He’s a person of the highest intellect, very much in the mode of Neil Gorsuch,” said Robert George, a constitutional scholar and the McCormick Professor of Jurisprudence at Princeton University, referencing Trump’s first appointment to the Supreme Court.

In a conference call with reporters shortly after the president announced Kavanaugh’s nomination, Marjorie Dannenfelser — Legate and president of the Susan B. Anthony List — welcomed the news as a positive step for the pro-life movement.

“We have a man who’s devoted to interpreting the text of the Constitution as it is written and as it applies to today’s debate,” Dannenfelser said.

WINDOW TO HIS APPROACH

Some of his rulings from the D.C. appellate bench offer a window into Kavanaugh’s approach. In 2017, Kavanaugh dissented from an appeals- court vote to allow an undocumented pregnant 17-year-old in immigration detention to seek an abortion. He said the majority decision represented “a radical extension of the Supreme Court’s abortion jurisprudence.”

In the 2015 case of Priests for Life v. U.S. Department of Health and Human Services, Kavanaugh said the Affordable Care Act’s requirement for contraceptive coverage in employee health insurance plans violated the religious freedom of religious nonprofits.

“My judicial philosophy is straightforward,” Kavanaugh said from the White House on July 9. “A judge must be independent and must interpret the law, not make the law. A judge must interpret statutes as written. And a judge must interpret the Constitution as written, informed by history and tradition and precedent.”

PRACTICING CATHOLIC

In addition to being a respected conservative jurist, Kavanaugh is also a practicing Catholic who serves meals to the homeless as a volunteer for Catholic Charities and coaches CYO basketball in the Washington, D.C., area.

“I am part of the vibrant Catholic community in the D.C. area. The members of that community disagree about many things, but we are united in our commitment to serve,” Kavanaugh said at the White House.

Kavanaugh is a former altar boy who graduated from the Jesuit-run Georgetown Preparatory School near Washington, D.C. before attending Yale Law School. He has also taught law, primarily at Harvard Law School.

In his White House remarks, Kavanaugh, a married father of two daughters, emphasized that his Catholic high school’s motto was “Men for Others.”

Said Kavanaugh, “I’ve tried to live that creed.”

BRIAN FRAGA is a Legatus magazine staff writer.

When Breaking Evil Warrants War

Just War – when force is needed to protect innocents.

Is there such a thing as a “just war” anymore?

More specifically, do Catholic just-war principles — which originated in an age of hand-to-hand combat involving swords and spears — maintain relevance in a time of nuclear warheads, chemical weapons, and terrorism?

“Just-war theory is responsive in nature, so it does develop over time,” said Ronald Rychlak, professor at the University of Mississippi School of Law. “In some ways, it is driven by developments in warfare, but also by deeper thinking.”

Just-war doctrine, as the Catechism of the Catholic Church calls it, has indeed evolved over time to address new considerations and circumstances. Its fundamental principles, however, have remained a fixture in Church teaching over many centuries.

Justice and Peace

The Church’s just-war doctrine is rooted in Christ’s commandment to show love and mercy even to our enemies. e Church also has long acknowledged that situations exist in which nations can be morally justified in taking up arms to combat evil.

St. Augustine formulated the rudiments of these principles in the fifth century. He reasoned that for peace and order to reign among nations there must be peace and order within the souls of individual persons. Interior peace requires the virtue of justice, which encompasses all other virtues that bring order to the soul.

Because humanity is sinful, however, there will always be disordered souls inclined toward evil who threaten this peace. Because of this, nations may prudently use military force to restore justice. “Peace should be the object of your desire,” Augustine wrote. “War should be waged only as a necessity… that peace may be obtained.”

In waging just war, Augustine taught, nations must act as peacemakers, seeking to lead evildoers back toward peaceful coexistence and showing mercy to the conquered and captured. Even war must be motivated by love — for the enemy as well as its victims.

In the 13th century, St. Thomas Aquinas said just war has “the object of securing peace, of repressing evil and supporting the good.” He proposed three conditions: Just war must be declared and waged by lawful authority, be truly necessary for achieving a just cause, and be conducted with the intention of restoring justice and peace.

Collectively these principles have formed the basis for just-war tradition ever since. In the years preceding the Second World War, Pope Pius XII — whom Rychlak defended against charges of inaction during the Holocaust in his book Hitler, the War, and the Pope — sought to prevent war through negotiations. Once fighting began, he tried to retain diplomatic relations so he could minister to people on all sides of the conflict.

But Pope Pius also collaborated with anti-Nazi conspirators and even participated in a plot to assassinate Adolf Hitler. “ at truly raises some interesting ethical questions, but it suggests that strict neutrality, pacifism, or conscientious objection are not mandated by his understanding of the Catholic Church,” said Rychlak.

In his 1948 Christmas message, Pope Pius framed war as sometimes a moral imperative:

Among (the) goods (of humanity) some are of such importance for society that it is perfectly lawful to defend them against unjust aggression. Their defense is even an obligation for the nations as a whole who have a duty not to abandon a nation that is attacked.

“In other words, public authorities have the duty to sometimes fight – to wage war,” Rychlak said.

The development of atomic weapons raised new moral questions. Considering the strategy of nuclear deterrence, some theologians debated whether just war was possible anymore. First Pope Pius and later the Second Vatican Council boldly condemned the use of armaments capable of widespread and indiscriminate destruction; the U.S. bishops’ 1983 peace pastoral reaffirmed just-war teaching (see sidebar) and urged world powers to work toward nuclear disarmament.

The Catechism: Peace not mere absence of war

The Catechism affirms that peace is not the mere absence of war, but rather “the work of justice and the fruit of charity.” It urges everyone to pray and work to avoid war.

It enumerates “strict conditions” for evaluating just war:

  • the damage inflicted by the aggressor on the nation or community of nations must be lasting, grave and certain;
  • all other means of putting an end to it must have been shown to be impractical or ineffective;
  • there must be serious prospects of success;
  • the use of arms must not produce evils and disorders graver than the evil to be eliminated. The power of modern means of destruction weighs very heavily in evaluating this condition.

The Catechism further stipulates that the duty of evaluating just-war criteria “belongs to
the prudential judgment of those who have responsibility for the common good.” It calls for humane treatment of prisoners, the wounded and noncombatants, and supports allowances for conscientious objectors. It repeats the Council’s condemnation of indiscriminate destruction and describes genocide in particular as a mortal sin.

War and Peace

The evolution of warfare since World War II has led to further questions about just-war doctrine — with some calling it obsolete, and others suggesting it is too limiting.

In his message to a 2016 conference in Rome on “Nonviolence and Just Peace,” Pope Francis endorsed “active nonviolence” as the ideal alternative to armed conflict. At the same time, however, he noted that although the Council condemned war, it also supported a government’s right to mount an armed defense under just-war principles.

In other words, Pope Francis advocates for peace, just as all recent popes have done, Rychlak indicated.

“Do we really want a pope urging war? I don’t think so,” he said. “No matter how bad the situation, a pope would want peaceful resolution… I think every caring citizen would want a just peace over a just war. I think popes and other religious leaders should advocate for that, as Pope Francis is doing and as Pope Pius XII did prior to World War II.”

Some who challenge just-war doctrine claim it is too often used to justify rather than avoid war. Such a charge was heard after U.S. officials sought Vatican support on just- war grounds for its planned invasion of Iraq in 2003.

“Of course, just-war principles can be perverted and used to excuse war,” said Deacon James Toner, a former U.S. Army officer, military ethicist and author of Morals Under the Gun. “But the just-war principles are valuable, if not infallible, guides in statecraft.”

The present- day threats of terrorism and of rogue nations surface alarming new concerns. Easier delivery systems mean an enemy can launch weapons of mass destruction with scant warning. Some thinkers, like just-war ethicist George Weigel, believe there sometimes may be moral justification for a pre-emptive strike against such a dangerous regime.

Toner tends to agree: “Would anyone have reasonably opposed our ‘ rst strike’ had we had the intelligence data well in advance against the madmen who perpetrated 9/11?”

“Sometimes the only ethical avenue to take in the face of aggression is to stop it – and by military means if necessary,” Toner said. “There are times when we are morally justified – and morally obligated – to prevent or to stop evil.”

What matters for soldiers and civilians alike, he added, is “education in virtue, which means the ability to choose the right course of action even in moments of great difficulty.”

That would begin with the virtue of justice that St. Augustine and Church tradition sees as at the heart of just-war doctrine.

GERALD KORSON, a career Catholic editor and journalist, writes from Indiana.

The Challenge of Peace

In their 1983 pastoral letter “The Challenge of Peace: God’s Promise and Our Response,” the Catholic bishops of the United States summarized the requirements for just war in six criteria:

  • Just Cause: War must confront a “real and certain danger” that threatens innocent life or human rights
  • Competent Authority: War must be declared “by those with responsibility for public order”
  • Comparative Justice: The rights and values being threatened or violated must be critical enough to override the presumption against war
  • Right Intention: War can only be conducted to satisfy the just cause and in pursuit of peace and reconciliation
  • Last Resort: All peaceful alternatives to war must first be exhausted
  • Probability of Success: Irrational use of force or futile resistance that does disproportionate harm should be avoided
  • Proportionality: Inflicted damages and costs of war must be proportionate to the good expected to come from war

 

Poverty, justice and Christian love

MICHAEL MILLER writes that there are many problems with the way we engage questions of poverty both in the U.S. and abroad, but one underlying philosophical issue that is often neglected is that we have replaced charity with humanitarianism, a hollowed-out secular and materialist vision of Christian love. We need a more human vision of Christian love . . . 

Michael M. Miller

Michael M. Miller

Concern for the poor is at the heart of Christianity. Saint John Paul II called poverty one of the greatest moral challenges of our time, and to ignore the plight of the poor has consequences for our eternal souls.

Pope Francis addressed poverty in Evangelii Gaudium: “Almost without being aware of it, we end up being incapable of feeling compassion at the outcry of the poor, weeping for other people’s pain, and feeling a need to help them, as though all this were someone else’s responsibility and not our own. The culture of prosperity deadens us; we are thrilled if the market offers us something new to purchase. In the meantime all those lives stunted for lack of opportunity seem a mere spectacle; they fail to move us” (#54).

The consequence of apathy in the face of suffering is seen clearly in the parable of Lazarus and the rich man. In his commentary on this passage, St. Augustine notes that it was not his great wealth that sent the rich man to hell, it was his indifference. He just didn’t care. He ignored the poor man.

Care for the poor is not simply a question of charity, it’s also a question of justice. We are called to help the poor, but at the same time, we’re not called just to “do something.” Having a heart for the poor is not enough. We also need a mind for the poor. Our charity and justice must be ordered by reason and oriented to truth.

Pope Benedict writes in Caritas in Veritate: “Only in truth does charity shine forth, only in truth can charity be authentically lived. Truth is the light that gives meaning and value to charity. That light is both the light of reason and the light of faith. Without truth, charity degenerates into sentimentality” (#3).

This means our charity and our hunger for justice must be rooted in the virtue of prudence. German philosopher Josef Pieper defined prudence as seeing the world as it is and acting accordingly. This is why prudence is often called the mother of the virtues, because we can’t be just or brave or temperate if we don’t see the world as it is and act accordingly.

Prudence is especially important when we try to help the poor. Saint Thomas Aquinas reminds us that justice can be destroyed in two ways: not only by “the violent act of the man who possesses power,” but also by the “false prudence of the sage.” Imprudent charity can actually increase injustice. Sometimes our help can actually make things worse.

There are many problems with the way we engage questions of poverty both in the U.S. and abroad, but one underlying philosophical issue that is often neglected is that we have replaced charity with humanitarianism. What is the difference? Humanitarianism focuses primarily on providing comfort and meeting the material needs of people, but this is only a small part of charity. Humanitarianism limits its horizons to the material, and thereby misses the creative capacity, inherent dignity, and eternal destiny of man.

Humanitarianism is a hollowed out secular and materialist vision of Christian love. It is a bad copy. Yet even Christian organizations often operate under a humanitarian model. As Pope Francis has warned, the Church is not supposed to be just one NGO (nongovernmental organization) among many.

Charity, on the other hand, comes from the word caritas in Latin or agape in Greek. Charity is Christian love. To love is to seek after the good of the other. That means that while good works and care for the poor are an essential part of charity, they are not the whole thing.

To desire the good of the other ultimately means promoting and encouraging human flourishing, all the while keeping the eternal destiny of the person in mind. Does this mean Christian charity does not care about material needs? Of course not, but it realizes this is not enough. The provision of material needs should be at the service of promoting human flourishing, helping the person to become all God has called him to be.

Ideas do indeed have consequences, and the shift from humanitarianism back to a richer and more human vision of Christian love changes the way we engage with the poor — not simply as objects of our charity, but as the subjects and protagonists of their own story of development.

It also makes us less focused on ourselves and more focused on the people we are trying to help. Pope Francis has exhorted us to be on the front lines with the poor. It is time for a revolution in charity — in thought and in deed.

MICHAEL MATHESON MILLER is a research fellow at the Acton Institute, the director of PovertyCure and host of PovertyCure DVD Series.

Ultimate justice

The Catholic teaching on capital punishment is often misunderstood and misrepresented. . .

electric_chairWhen Sylvester and Vicki Schieber lost their daughter Shannon to a horrific rape and murder in 1998, they faced a parent’s worst nightmare.

“She was beautiful and brilliant, always winning awards while she was growing up,” Vicki Schieber told Legatus Magazine. A 23-year-old doctoral student at Wharton, “Shannon was everything a parent could want — and she was also very good on the inside.”

Yet, instead of calling for the death penalty for the murderer (who was eventually apprehended in 2002), the Schiebers asked for life without parole. Their Catholic faith brought them to the conclusion that the death penalty would not honor Shannon’s memory.

Church teaching

Throughout history, the Catholic Church has always viewed the death penalty in terms of justice — punitive and restorative. Capital punishment advocates find justice in the death penalty, noting the difference between “innocent human life” and the lives of those who have committed horrific crimes. Opponents focus on the sanctity of human life and radical forgiveness.

“We couldn’t live with the thought that we would have to someday answer to God why we demanded the assailant’s execution when we knew Jesus would forgive our trespasses if we forgave those of others,” Schieber said. “We also knew that society would be well protected as long as this assailant would be spending the remainder of his life in a maximum security prison without the option of parole.”

The Catechism of the Catholic Church teaches that “legitimate public authority has the right and duty to inflict penalties commensurate with the gravity of the crime” (#2266), and “the traditional teaching of the Church does not exclude … recourse to the death penalty” (# 2267).

In other words, the Church does not proscribe the death penalty. It does, however, urge extreme caution and prudential judgment. Pope John Paul II expressed his distaste for the death penalty in his 1995 encyclical Evangelium Vitae.

“John Paul II lived under two regimes in Poland where the state’s unique power of legitimate use of lethal force in the form of capital punishment was regularly and illegitimately used against each regime’s political opponents,” said Samuel Gregg, director of research at the Acton Institute.

Despite his profound opposition to capital punishment, John Paul II never imposed his personal position as the Church’s official position.

“At no point did John Paul ever put the death penalty in the same category as murder, intentional abortion, euthanasia and embryonic stem-cell research,” said Gregg. “To do so would have contradicted the Church’s tradition on capital punishment.”

The Church teaches that capital punishment is permissible when it’s not possible for the state to adequately secure a murderer. However, in our day and age such instances are “rare, if practically non-existent” (CCC #2267).

Catholic opinion on capital punishment has shifted in recent years. A 2005 study from the Conference of Catholic Bishops found that Catholics’ support for the death penalty has dropped from over 70% to less than 50% in the last decade.

“Since the 1970s, 131 people have been exonerated from death row,” said Kathy Saile, the USCCB’s director of domestic social development. “We also know of people who have been executed and later discovered to be innocent.”

Although the USCCB has campaigned to end the death penalty for 25 years, Catholics who support capital punishment remain in good standing, said Fr. Michael Orsi, research fellow in law and religion at Ave Maria School of Law. However, he said, some Catholics tend to lump together the life issues — abortion, war, the death penalty and stem-cell research.

“Abortion is the taking of innocent human life and is always an immoral action,” he said. “The death penalty is the taking of criminal life. It is not always immoral. Both issues do not have the same weight. Abortion is a non-fallible teaching. It is never permissible. The death penalty is sometimes permissible.”

Orsi notes the difference in sheer numbers of those affected. There were over 1 million abortions in the U.S. last year, but only 37 executions.

Closure and healing

Ultimately, many favor the death penalty because they expect it to bring closure and healing. Vicki Schieber disagrees.

“It’s natural for family members to be angry after the murder of a loved one; it’s a tragedy of unimaginable proportions,” she said. “You go through shock, grief, anger — but you need to decide how you are going to live for the rest of your life.

“I’ve seen family members who can’t let go of the anger. They believe retribution will bring them healing, but it just prolongs the pain,” she said.

Legal procedures often drag families into court over and over. The stress can split families apart.

“It hardly ever brings healing and the so-called ‘closure;’ there is never any closure on a loss of this magnitude,” Schieber said. “I’ll never pass a woman with children and not feel the terrible pain of knowing I’ll never have Shannon’s children in my life. Nor can I go to a wedding and not feel the loss of never seeing Shannon walk down the aisle.”

Since the murder, the Schiebers’ personal tragedy has led to a larger cause. Vicki has devoted her life to the abolition of capital punishment. She applauds New Mexico Gov. Bill Richardson’s decision to sign a bill repealing the death penalty on March 18. She is a founding member of Murder Victims’ Families for Human Rights and regularly gives speeches and testimony before legislative committees.

Most importantly, her efforts have helped her family move on from the horror of Shannon’s murder. “There really is amazing power in forgiveness to bring healing and strength to go on,” she said.

Sabrina Arena Ferrisi is a staff writer for Legatus Magazine.

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Just the facts

States with the death penalty: 35

Inmates on death row: 3,307

Death row inmates exonerated since 1973: 131

Executions since 1976: 1,158

Cost of California’s annual death penalty system: $114 million*

Countries with death penalty: 62+

Most executions in 2008: China (1,718), Iran (346), Saudi Arabia (102), USA (37), Pakistan (36).

* This is over and above the cost of life imprisonment. In Indiana, the total cost of the death penalty exceeds the complete costs of life without parole by 38%.

Source: Death Penalty Information Center