Renewing the World Order: An International Community Built on Solid RockBRIAN SCARNECCHIA AND PHILIP C.L. GRAY
Upon what ground will human rights ultimately rest ó the shifting sand of human opinion or Godís solid Rock?
With these words, Sacred Scripture provides God's will for the role of secular authorities and the Magisterium of the Church. The authority of the former comes from natural law, which obliges them to order the daily, temporal affairs of man. Thus, secular authorities exercise a human power that pertains to the nature of man. On the other hand, the Magisterium has an obligation to order the moral and spiritual life of man for the benefit of his salvation. Her authority is divine (cf. Mt. 18:18). Because the authority given to both comes from God, the authority of each cannot be in opposition and at the same time remain in God's will.
There is no doubt that moral and spiritual matters directly affect temporal concerns, and the Magisterium exercises temporal authority. Because of this, secular rulers have relied on bishops and popes to provide the necessary moral teaching for law and order to exist. Religious disputes can cause wars. Church councils often resolve these disputes and provide a basis for secular rulers to act. When secular rulers ignore or deny the authority of the Church, history has shown that great evils follow. The widespread destruction of Europe by the Barbarians, and the political turmoil in England under Henry VIII are only two examples. The current political climate of our world with its widespread culture of death and the contributions made to advance the culture of death by our country are most fearful examples in our time.
Within the United States, there exists a separation of church and state. Rather than submitting moral issues to the judgment of a religious body, the Founding Fathers submitted them to the people. This occurs through a democratic process by which elected delegates of the people pass laws that will in turn affect the people. The intent was to establish a government of the people, by the people, for the people.
A CONSTITUTION BETRAYED
Our experiment in self-government has been greatly weakened through an unauthorized revision of the Constitution and the judicial usurpation of the democratic process by the U.S. Supreme Court.(1) Without benefit of amendment, the high court has simply rewritten the Constitution. Rather than interpreting a Constitution, the high court has invaded the legislative sphere by subjecting all federal and state laws to their veto and revision. This is contrary to the intentions of the Founding Fathers, who weighed the merits of delegating to the Supreme Court an active role in making law in what they called a "council of revision," and firmly rejected it:
"[T]he Constitutional Convention did on at least two occasions reject proposals which would have given the federal judiciary a part in the recommending of laws or in vetoing as bad or unwise the legislation passed by Congress. . . . Madison supported the proposal on the ground that a "Check (on legislature) is necessary." . . . [Nonetheless,] the proposal for a [judicial] council of revision was defeated."(2)
Despite this fact, the Supreme Court has assumed the authority the Founding Fathers refused to grant. This is most noticeable in the area of public morals. While the Constitution reserves issues surrounding family life and morals to the people and the states, the federal judiciary has usurped this role over the last 50 years. The U.S. Supreme Court has overturned state law and rewritten the Constitution, legislating its value preferences in favor of pornography, contraception, abortion, sodomy, and euthanasia.
As noted, the Founding Fathers of this nation left the choice of values to the people and their representatives to be decided upon through the democratic process. Rather than admit that it has taken on the role of a "council of revision," the high court conceals its usurpation of the democratic process by alleging it is merely interpreting the Constitution. Justice Scalia, in his dissenting opinion in Planned Parenthood of Southeastern Pennsylvania v. Casey, criticized what he referred to as our "Imperial Judiciary." He said that if the Supreme Court's "process of constitutional adjudication consists primarily of making value judgments," then we may expect a people imbued with the ideals of representative government to protest the values imposed upon them by a highfalutin, non-democratic court. After all, he says, "the people know that their value judgments are quite as good as those taught in any law school maybe better."(3)
THE CONSTITUTION'S FUNDAMENTAL FLAW
Many argue that a return to the original intent of the Constitution as expressed in its plain language, in the record of the Constitutional Convention supplemented by the Federalist Papers, and in the common law of that time would restore sanity and legitimacy to the Supreme Court and our rule of law. Certainly this would help, but the real problem is much deeper. The problem isn't that the Constitution has been ignored, which is the case. The fundamental flaw with our political arrangements is that they are not grounded in the natural law. Therefore, our rule of law is subject to error regarding fundamental human rights even when the Constitution is followed correctly. Everything in the Bill of Rights is negotiable. Nothing is beyond the will of the people to change through amendment. For instance, tomorrow a two-thirds majority of the Senate or two-thirds of the states could ratify an amendment repealing the Thirteenth and Fourteenth Amendments to reinstitute slavery.
Generally, conservatives attack the legitimacy of the recent Supreme Court decisions on procedural grounds. For example, Roe v. Wade, which declared that abortion is a fundamental human right, should be overturned, they say, because the high court acted as a super-legislature or council of review. However, most conservative jurists would drop their complaint not necessarily their moral objection if the same decision to legalize abortion had been reached by legislative majority or a constitutional amendment. Because the text and founders of the Constitution are silent about abortion, it is up to the people and their representative to vote on the legality of abortion. As Justice Scalia wrote, "Value judgments, after all, should be voted on, not dictated. . . ."(4)
But would the lives of children in the womb be more secure if, instead of being subject to judicial fiat, their lives were submitted to a statewide referendum? If, instead of nine judges acting beyond the scope of their authority, would it make everything better if 99 percent of the people voted for legalizing abortion? Should mob rule substitute for judicial tyranny? On the contrary, Pope John Paul II says that any attempt by the state to legalize murder or make abortion legal is sinister and tyrannical:
"When a parliamentary or social majority decrees that it is legal, at least under certain conditions, to kill unborn human life, is it not really making a 'tyrannical' decision with regard to the weakest and most defenseless of human beings? Everyone's conscience rightly rejects those crimes against humanity of which our century has had such sad experience. But would these crimes cease to be crimes if, instead of being committed by unscrupulous tyrants [e.g., Hitler, Stalin, Mao], they were legitimated by popular consensus?"(5)
It seems that we are incapable of recognizing tyranny except when it comes dressed in the guise of one-man rule and afflicts us personally with painful indignities.(6) But when crimes are perpetrated by supposedly democratic institutions on an invisible minority, few people take notice. As long as we don't miss a meal, none dare call it tyranny.
Notre Dame constitutional law scholar Charles Rice is not optimistic: "Today I would suggest to you that the Constitution is gone. It doesn't exist anymore. Anybody who thinks they can rebuild it might as well be a Cubs fan."(7) At this late date, what is needed is not a servile return to the past but a re-formulation of our political arrangements. Our laws must be grounded in something more than the whim of a majority easily manipulated by marketing techniques and mass media controlled by a powerful elite. Laws legitimized merely by the will of the powerful cannot bind in conscience. On the other hand, natural law is the light of reason infused in us by God, whereby we understand what must be done and what must be avoided.8 Natural law is a universal moral law knowable by reason that flows from human nature and, when followed, unfolds the human person. Natural law binds us all. We may not heed its call, but we cannot escape its verdict.
The Declaration of Independence speaks of self-evident, inalienable rights. This is an allusion to the natural law. Unfortunately, the Constitution never mentions self-evident, inalienable rights. Even if it did, who would define them? If they were perfectly self-evident, then each citizen would be their arbiter and all would agree as to what they are, which obviously is not the case. The problem with an appeal to inalienable rights based upon an unwritten higher law is that, as often as not, it rests simply on a particular judge's whim or his "viscera."(9)
The crux of the dilemma is that only a higher law flowing from and unfolding man's common moral nature can ground human rights so that they cannot be uprooted by the whim of amendments, court decisions, and public referendums. However, we must abandon all talk of a higher law, and ultimately of human rights as well, unless we are willing to recognize who has authority to say with certainty what it is. In his encyclical letter Evangelium Vitae ("The Gospel of Life"), Pope John Paul II explains:
"It is therefore urgently necessary, for the future of society and the development of a sound democracy, to rediscover those essential and innate human and moral values which flow from the very truth of the human being and express and safeguard the dignity of the person. . . . Consequently there is a need to recover the basic elements of a vision of the relationship between civil law and moral law, which are put forward by the Church, but which are also part of the patrimony of the great juridical traditions of humanity. . . . [I]n no sphere of life can the civil law take the place of conscience or dictate norms concerning things which are outside its competence. . . . The real purpose of civil law is to guarantee an ordered social coexistence in true justice, so that all may 'lead a quiet and peaceable life, godly and respectful in every way' (1 Tim. 2:2). Precisely for this reason, civil law must ensure that all members of society enjoy respect for certain fundamental rights which innately belong to the person, rights which every positive law must recognize and guarantee."(10)
Is it too early, or is it already too late, to consider the claim that the only authority with competence to interpret the whole moral law is the Magisterium of the Catholic Church?11 Is it not time to suggest that nations submit the definition of fundamental human rights to this venue? An amendment to the Constitution, together with a concordat with the Vatican, could be adopted which would provide a sure foundation for a renewed world order, to wit:
Section 1. The fundamental human rights of the Natural Law as interpreted by the See of Peter, including but not limited to those enumerated in the Vatican "Charter of the Rights of the Family," shall not be abridged.
Section 2. In the event that any law, statute, treaty, alliance, or future Amendment shall violate the fundamental human rights enumerated in Section 1, the people or the States may cease from the payment of taxes and all further acts of allegiance to the federal government.
REPLY TO OBJECTIONS
To those who may say that such an Amendment is neither realistic nor desirable, let them pause and reflect that, like it or not, supra-national organizations exist that already influence, and may soon completely regulate, the laws of nations based on their own fallible, if not sinister, perception of fundamental human rights. Neither the Founding Fathers who provided for slavery, nor the political parties, nor the courts, nor the people or their representatives are competent, because of original sin, to define with certainty authentic human rights. Already, several countries have concordats with the Holy See. In some places, canon law has civil effects. If we would be free of tyranny, we must bend the knee to higher law and a higher authority established by God for this very purpose to teach without error about faith and morals.
The passage of the proposed amendment would not create a confessional state or a state-supported church. Freedom of conscience and of worship would still be fully respected. It would not amount to a theocracy because, in every matter that legitimately lies within the state's competence, the state would be truly sovereign. It would not substitute the Vatican's prudential judgment for that of Congress in the areas of diplomacy or domestic or foreign policy. It would not be Utopia. Serious disagreements would still arise and, given man's fallen state, wars and civil unrest would still be possible.
However, such an amendment would eliminate the ability of the state to ideologically justify wars, theft, and crimes against humanity. It would be the democratic equivalent of when kings and queens placed their crowns upon the altar during their coronation. Such a gesture did not replace the consent of the governed, but grounded that consent in transcendent authority, which served as a check upon the king's authority. It also served to signal when that trust was betrayed, and it empowered the people to resist the tyrannical regime and legitimated the formation of the renewed government.
The passage of such an amendment may not come in the foreseeable future. Certainly it would require the healing of the Body of Christ wounded by sin and division. But why should we limit our horizon to the foreseeable? Who foresaw the events of 1989-91 in Eastern Europe? Whoever thought 10 years ago that Soviet Communism would crumble? Yet with God all things are practical even the unforeseeable.
The Pope's favorite joke attests to this: "There are only two ways for peace to come to the nations of Eastern Europe and the Balkans. One solution is miraculous, the other is practical. In one scenario, Our Lady appears with all the court of heaven and blesses the world and there is peace. That's the practical solution. The miraculous solution is to expect all the nations of Eastern Europe to agree on their own to live in peace and harmony!"
QUEEN OF PEACE
At times the only practical solution is the miraculous. That's when the unforeseeable becomes predictable. At Fatima, in 1917, Our Lady promised that in the end, after much suffering and strife, her Immaculate Heart would triumph and that we would be given an era of peace. Only nations founded upon the natural law articulated infallibly by the Vicar of Christ can fully promote an era of peace. All other political experiments, even the best, have led in the end to a culture of death. Therefore, we should prepare for an unforeseeable but predictable event that the meek may inherit an unraveled and contrite nation.
Are we ready to heal and rebuild a community of nations worthy of man? This will require solidarity, subsidiarity, social justice, the universal designation of goods, prudence, God's grace, and time. We must choose the cornerstone now. Whom will we serve mammon or the one, true God? Upon what ground will human rights ultimately rest the shifting sand of human opinion or God's solid Rock?
1. First Things, Symposium: "The End of Democracy? The
Judicial Usurpation of Politics" (November, 1996), 18-42.
Scarnecchia, Brian and Philip C.L. Gray. "Renewing the World Order: An International Community Built on Solid Rock." Lay Witness (January-February, 2000).
This article is reprinted with permission from Lay Witness magazine.
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