Sola Scriptura and the Constitution

Conservatives who advocate originalism or textualism when in comes to interpreting the Constitution are sometimes accused of advocating a “sola scriptura” view of the Constitution. Since such charges are typically made by Catholics to Catholics, the allegation has a certain sting to it, as if holding a particular theory of constitutional interpretation someone made one a bad Catholic.

Yet there needn’t be anything inconsistent about interpreting the Constitution in one way and the Bible in another. The Bible is the inspired Word of God, given to us for the salvation of souls; the Constitution is a legal document. What’s sauce for the goose ain’t necessarily sauce for the gander in such a context.

In any event, it’s not clear to me exactly what it would mean to have a sola scriptura view of the Constitution (which for sake of flourish I shall call the sola constitutionola view), or what is supposed to be objectionable about it. Presumably the idea is that sola constitutionola is to the Constitution what sola scriptura is to the Bible. Okay, so what’s sola scriptura? According to the Missouri Synod, sola scriptura is the belief that:

The Bible is God’s inerrant and infallible Word, in which He reveals His Law and His Gospel of salvation in Jesus Christ. It is the sole rule and norm for Christian doctrine.

By parity of meaning, then, sola constitutionola would be the view that the Constitution is inerrant and infallible, and that it is the sole rule and norm for legal doctrine.

If this is what sola constitutionola means, then no originalist believes in it and it is silly to suggest otherwise. No one says that the Constitution is inerrant and infallible; nor do originalists think that the Constitution is the only legal authority. They are perfectly willing to recognize other sources of law, such as state and federal law, treaties, etc.

What view, then is sola constitutionola supposed to mimic? Is it the view that the meaning of the Scriptures does not change over time? If so, then I fail to see what is objectionable even from a Catholic perspective.

Originalism is the view that the Constitution ought to be interpreted according to its original public meaning, i.e., the way the text would have been understood at the time of ratification. So far as I know, no Protestant believes something analogous about Scripture. All Christians believe, for example, that many passages in the Old Testament refer to Christ, yet pretty clearly they would not have been understood by the general public to refer to him when originally written hundreds of years before his birth.

The Constitution is a public document ratified by a large number of people and subject to much debate before hand – that it could have a secret meaning is unthinkable. The Scriptures, by contrast, are inspired by God and everyone accepts that they contain many mysteries. The same goes for the view that Scriptures are to be interpreted according to their plain meaning. I highly doubt that the Constitution has a spiritual sense.

I admit I am not nearly as clear on this issue as I would like to be, but as far as I can tell, the doctrine of sola constitutionola is either plainly false or perfectly acceptable.

A Union Busting Bishop?

Over at Mirror of Justice, Vox Nova alum Rick Garnett takes note of a simmering conflict over whether to unionize Scranton’s Catholic schools:

More than 200 supporters, many from regional union locals, joined a noon rally outside Diocese of Scranton Bishop Joseph Martino’s residence to mark the one-year anniversary of the fight to unionize local Catholic school teachers. Scranton Diocese Association of Catholic Teachers President Michael Milz handed out green and black arm bands.

“Black is the color of mourning, and without a doubt we are here for that sorrowful purpose,” Milz said, repeating the claim that Martino rejected more than a century of Catholic Church support for organized labor when he rejected the request to unionize.

More. Bishop Martino is hardly alone here. Religious organizations (including Catholic schools) are exempt from many labor laws (including the minimum wage and overtime) and many Dioceses have long resisted efforts to unionize Catholic schools.

I am the State, the State is Me

A few days back, as is often the case, folks were arguing in the Vox Nova comboxes about abortion, and the question arose of whether legal protection for the unborn or a minimization of the number of abortions ought to be the primary goal of the pro-life movement. Zippy spoke in favor of the former and stated his case thusly:

The illegality of murder is more paramount. If there were a law sanctioning the murder black people, it would be more important to eliminate that legal sanction than to decrease the number of murders. One is a question of basic justice, while the other is merely a matter of what it is possible to achieve as a practical matter.

As so often happens when reading Zippy, when I read the above I had, simultaniously, two seemingly mutually incompatible thoughts:

1) what this guy is saying is absolutely nuts; and

2) he kind of has a point.

The First Amendment vs. The Chicago Way

John McCain is no friend of the First Amendment. McCain-Feingold, the legislation that bears his name, is only the latest in a long series of attempts to restrict political discussion and debate regarding elections (for some examples of the pernicious effect that campaign finance regulations have had, see here and here). It would be hard, given Senator McCain’s history, for another candidate to show greater disregard for freedom of speech.

Barack Obama, however, seems to be giving it his best try. In Wednesday’s Boston Globe, Jeff Jacoby recounts some instances of the Obama campaign’s disturbing tendency to try to use government as a means of silencing criticism:

Vacant Justice II

On Saturday, I talked about the likelihood that a President McCain or a President Obama would have the opportunity, if elected, to appoint Supreme Court Justices. Today I’d like to talk about the kind of justices they’d be likely to appoint. As with my previous post, I’ll be confining myself to considering whether such justices would be likely to overturn Roe v. Wade if given the chance (I focus on Roe not because I think other matters are unimportant, but because of the central role that the President’s ability to nominate Supreme Court Justices plays in many Catholics thinking on abortion and voting. For an analysis of whether overturning would actually reduce the abortion rate, see here).

I don’t think there’s much doubt that the Justices a President Obama would appoint to the Court would be pro-Roe. He has said as much, and previous experience with President Clinton’s nominees shows that Democrats tend to keep their word on such a pledge.

What about a President McCain?

Vacant Justice

When it comes to Supreme Court vacancies and abortion, there are two things to remember. First, not all vacancies are created equal. There are currently five clear pro-Roe votes on the Supreme Court (Stevens, Breyer, Ginsburg, Souter, and Kennedy), two clear anti-Roe votes (Scalia and Thomas), and two votes that are probably but not definitively anti-Roe (Roberts and Alito). To get an anti-Roe majority on the Court, it’s not sufficient for a President to appoint an anti-Roe justice. It must also be the case that the justice this anti-Roe justice is replacing is one of the five pro-Roe justices currently on the Court. So, for example, if Justice Scalia were to step down and the President were to appoint Judge Pryor (who is about as close to a certain anti-Roe vote as one could imagine) to replace him, this wouldn’t change the vote should a case reach the Supreme Court in which Roe was challenged. That doesn’t mean that a Supreme Court vacancy isn’t important if the justice being replaced is anti-Roe. Should a pro-Roe justice be appointed to replace an anti-Roe justice, this would make achieving an anti-Roe majority on the Court that much more difficult. Likewise, if a pro-Roe justice were to be replaced by another pro-Roe justice, this wouldn’t necessarily change the vote in any case involving Roe, but it would take that seat “off the table” in terms of building an anti-Roe majority for the next 30 years or so until that new pro-Roe justice got ready to retire.

The other important thing to note about Supreme Court vacancies is that they are not random events. A vacancy can occur because a given justice dies or is too ill to continue his service, or it can occur because the justice in question decides to retire. And whether a justice decides to retire at any given point will depend, in part, on whether he thinks he will be replaced on the Court by someone who broadly shares his views on the law. The more liberal a justice is, the less likely he will be to retire during a Republican administration (if he can help it). The more conservative a justice is, the less likely he will be to retire during a Democratic administration.

McGovern vs. Card Check

Former Senator and 1972 Democratic Presidential nominee, George McGovern, has in recent years become something of a liberty loving fellow. In his most recent column, he writes about the so-called “card check” legislation currently pending in Congress that would do away with secret ballots for union elections:

As a longtime friend of labor unions, I must raise my voice against pending legislation I see as a disturbing and undemocratic overreach not in the interest of either management or labor.

The legislation is called the Employee Free Choice Act, and I am sad to say it runs counter to ideals that were once at the core of the labor movement. Instead of providing a voice for the unheard, EFCA risks silencing those who would speak.

The key provision of EFCA is a change in the mechanism by which unions are formed and recognized. Instead of a private election with a secret ballot overseen by an impartial federal board, union organizers would simply need to gather signatures from more than 50% of the employees in a workplace or bargaining unit, a system known as “card-check.” There are many documented cases where workers have been pressured, harassed, tricked and intimidated into signing cards that have led to mandatory payment of dues.

Under EFCA, workers could lose the freedom to express their will in private, the right to make a decision without anyone peering over their shoulder, free from fear of reprisal.

The Minimum Wage is Always Zero

Yesterday the federal minimum wage was raised from $5.85 an hour to $6.55 an hour. Perhaps you didn’t notice. Minimum wage laws are a strange sort of thing. They’re quite popular, yet the arguments used to support them are often of the sort that, in other contexts, hardly anyone would find persuasive.

Suppose I were to argue as follows: Homeless is an injustice and a tragedy, and no one should have to beg on the streets for food or money, or to sleep on the streets. Therefore, we should make begging and vagrancy illegal.

Presumably few people would find such an argument convincing. They would recognize that, bad as it is to have to beg for money in order to be able to eat, simply taking away your ability to beg while doing nothing about the circumstances that led you to beg in the first place isn’t going to make you any better off.

P.Z. Myers: Jerk or Criminal?

Over the past couple of weeks, the blogosphere has been ablaze with controversy ignited by biologist and blogger P.Z. Myers’ threatened (and later claimed) desecration of a Eucharistic host. Myers’ actions were met with many a forceful rebuke, and rightly so. Curiously, though, there were no calls among Myers’ critics for him to be jailed or fined for his actions, nor was there much discussion about how it was too bad that people were free to engage in this sort of offensive behavior without the threat of legal sanctions.

What do I say this is curious? Because it is the position of the Catholic Church (or, at least, of Her current leadership) that the sorts of acts Prof. Myers claims to have performed ought to be against the law. Pope Benedict, for example, said the following back in 2006:

Would Overturning Roe Reduce the Abortion Rate?

In Roe v. Wade, the Supreme Court held that women had a fundamental right to procure an abortion. So long as the decision remains the law of the land, any attempt to significantly restrict legal access to abortion will be futile. For this reason, most of the pro-life movement has long seen overturning Roe as one of the chief goals in the fight against abortion.

Recently, however, several of my co-contributors at Vox Nova have taken issue with this assumption. Morning’s Minion, for example, put the matter thusly:

Some claim that the source of the “right” [to an abortion] is a certain Supreme Court decision, and this decision should be overturned. Game over. But not so. The largest states, states that account for the majority of abortions, would retain the legal framework intact— this, combined with ease of travel, makes me think that abortion rates would not change very much upon reversal.

To the extent that bans against abortion would be ineffective if limited to certain states, one obvious solution would be to press for a national abortion ban. Such a ban would be unlikely to pass, of course. But I don’t see that such a ban would be any less likely to pass than, say, a national handgun ban, which Morning’s Minion favors as a means of addressing the interstate problem that he finds so vexing in the abortion context. One could also favor a more limited law, preventing women from crossing state lines to avoid a home state abortion law. A version of such a law (limited to minors) was making its way through Congress before the Democrats took over, and the chances that such a law could pass in a post-Roe world are at least as high as any comparable ban on handguns.

Suppose though, that we stick with the scenario posed by Morning’s Minion, where abortion remains legal in some states but not in others, and no legal restriction on travel is in place. Would the abortion rate be lower in such a case than it is under Roe? I would say yes, for three reasons.