Why I Disagree with Doug Kmiec, Once Again

I cannot and will not support any candidate who refuses to acknowledge the fundamental human right to life and fails to hear the cry of the poor in the first home of the human race.

LOS ANGELES (Catholic Online) - I am pleased that Catholic Online is able to present another well written piece entitled "Catholic Reasons for Hope in the General Election" by Doug Kmiec, Chair and Professor of Constitutional Law at Pepperdine University and former Dean and St. Thomas More Professor of the Catholic University of America.

Doug has one of the finest legal minds in America. He has accomplished a lot of good through his distinguished career.

I write this article, as I have in the past, to respond to some of what he wrote in his current article with which I disagree. I will do so with respect and, in the hopes of fostering intelligent dialogue.

Before I begin my response, I want to address why Catholic Online continues to publish Doug Kmiec's articles. If you the reader were privy to some of the uncharitable and scathing letters which we have received from a small minority of our readers, you would understand why it might be more "comfortable" to do otherwise.

We do so do so because he is a good Catholic, a fine lawyer and a good writer. Even if he is, at least on this position, and in my opinion, wrong.

In another of our selections in this weekend edition, we have presented an excellent piece entitled "Using Words as Weapons on the Blogosphere", by Fr. Michael P. Orsi. It is published with special permission from the fine publication, "Homiletic and Pastoral Review", where it appears in their June Issue under its original title, "Calumny in the blogosphere."

Sadly, some of the responses we received after publishing Doug Kmiec in the past have been anything but charitable.

Anyone who takes the time to read Catholic Online on a regular basis knows that I have disagreed with Doug in many of my own articles. However, the worst I will say about my friend is that he is a good Catholic, with whom I disagree.

Fr. Orsi's timely article presents us with an opportunity to reflect upon the virtue of charity and the value of civil discourse.

Now, this time around, as I respond to Doug's recent piece, I will specifically address his characterization of my own position. Namely, that I cannot and will not support any candidate who refuses to acknowledge the fundamental human right to life and fails to hear the cry of the poor in the first home of the human race, their mother's womb.

After some complimentary affirmations of the earlier part of my editorial entitled "Why This Catholic Dreads the Campaign", Doug turns to the latter section where I lay out some specific prudential and practical issues which will inform my choice this time around as we approach the Presidential election in the United States.

Professor Kmiec writes:

"However, in raising "other considerations," Deacon Fournier comments that "the next occupant of the White House will choose at least one Supreme Court Justice. That choice will, at least in this Constitutional lawyers mind, determine whether the current 'culture of death' hiding under the profane precedent of Roe v Wade will take another generation of our children before they are able to breathe our air and be welcomed into our family."

"Those are heart-felt words, but for the reasons discussed below, they assume - mistakenly - what the overturning of Roe would actually mean. Given that abortion is an intrinsic evil without justification, thinking the overturning of Roe "solves" the abortion problem, when it does not, can mislead Catholics into the erroneous conclusion that any candidate unwilling to pledge reversal of Roe is categorically unworthy of support. I suspect that this is why the Deacon "dreads" the beginning of the campaign since both of the major candidates fall short of the Catholic ideal on the issue of the protection of human life."

Yes, he is correct. That is what I meant. Perhaps the use of the word "dread" was a poor choice of words. I certainly did not mean to imply that there is not hope. There is always hope. In fact, as I wrote in my editorial of May 3 entitled "The Inevitable Triumph of the Pro-Life Position", I believe we will see the end of Roe and the triumph of the Pro-life position:

"We must prepare ourselves for the real work of building a culture of life and civilization of love, a new society. The end of Roe is not the end of the struggle. We must not let up in our efforts to see Roe v. Wade vacated, overturned, or in any other feasible way eradicated from our jurisprudence. The decision is a heinous example of how bad science, worse history and nefarious judicial engineering disguised as "legal reasoning" can be used to unleash a horror on an entire class of persons. I believe that we will see its reversal. We now need to plan beyond that reversal. Our work has always been about more than Roe; it is about building a culture of life and a civilization of love, a new society."

I agree with Doug's assessment that the Republican approach is too often more of a "pro-Federalism" than a "Pro-life" position. I also agree that a Jurisprudence which was grounded in the reiteration of the classical Natural Law recognition that there are "unalienable rights" in the American "Declaration of Independence" is what is actually needed. The first among these Rights endowed upon us by the Creator is the "Right to Life". These rights were not conferred by the State. Nor are they capable of being eradicated by the Positive law. Recognizing that they are so endowed, is the only real long term solution.

However, I would go beyond the American Declaration. After all, the founders were a product of Western thought. What is really needed, in my opinion, is a re-presentation of a classical Natural Law Jurisprudence for the United States. This Jurisprudence must posit the "Law" as more than what the State, no matter which branch of the Government of the US, says it is. It must again assert that there are objectively moral truths concerning human behavior which can be known by reason. Further that they give rise to norms by which we should govern ourselves. Of course, chief among those norms is the objective moral truth that the killing of innocent human life is always and everywhere wrong.

The use of the language of "Natural Law" often alarms. Sometimes it causes confusion. However, it is not new in American Jurisprudence. In the landmark case of "Brown v. Board of Education," the U.S. Supreme Court essentially outlawed racial segregation in public schools, rightly declaring the "separate but equal" is simply not equal, and is unjust. The decision essentially stood for the proposition that even if some Court determined that the Constitution "permitted" racial segregation, it was still unjust because it violated a higher law.

So it is with the taking of innocent human life, at every age and stage. Even advocates of the abomination which twisted a notion of "privacy" to allow the intentional destruction of human life before birth, no longer argue that what is being destroyed in every procured abortion is not human life. No, they simply hide behind that profane, judicially manufactured notion of privacy and continue the misuse of the language of "choice". We have always acknowledged that some choices are simply immoral and should thus be be illegal. We will once again when we bring an end to legal abortion.

Why was legalized segregation, or any other evil such as the "ownership" of persons of color as property, ever considered morally wrong? Why do we look back on the days of Court enforced Slavery in the United States and say it was clearly unjust? Because we acknowledge that it violated a higher law, what we call the Natural Law.

Oh, I know there are differing theories of the "Natural Law" being bandied about these days. There is the so called "New Natural Law" theory developed by Germaine Grisez, John Finnis, and Joseph Boyle and being championed by Professor Robby George. Perhaps in another article I will address why I feel it is insufficient and, even if well intended, will not suffice. I believe that it has real pitfalls as a basis for developing a new Jurisprudence. Instead, I insist that what is needed is a re-presentation of a thoroughly "catholic" and classical Natural Law theory if we are ever going to rebuild Jurisprudence.

The concept of the existence of a "Natural Law" is not specifically a Christian construct. The Greek Philosophers, including Aristotle and Cicero acknowledged it. It has roots in much of the Philosophical thought, both East and West. However, in the Western Tradition, the influence of the Church informed the understanding of the Natural Law for the better. This vision of the Natural Law by which we should govern our conduct and inform our choices, is knowable to all men and women through the exercise of reason.

Saint Thomas' understanding of the Natural Law was that it is a participation in the Eternal Law through which God governs the universe. God governs through Divine Reason. The things of creation that are ruled by this Eternal Law are all "reasonable" in the sense that they participate in that Divine Reason. This Natural Law was implanted by God in our human nature, making it possible for us to know what is right and how we are to choose if we want to be fully human, flourish as persons, attain our "end" and live together in a just society. I am a proponent of that vision of the Natural Law. Perhaps the finest apologist for the recovery of classical Natural Law as a framework for the restoration of a just American Jurisprudence these days is, in my opinion, Russell Hittinger.

Now back to Doug Kmiec's newest article. My comment on the importance of the fact that the next President will make significant judicial appointments is not rooted in some misguided notion that overturning Roe v wade will end abortion. Rather, it is rooted in a pragmatic belief that we need to hold back further damage from the horrors unleashed in its wake while we set about the task of rebuilding a sane and civil Jurisprudence. My pragmatic conviction is rooted in my own experience as a Lawyer for almost thirty years and my realistic assessment of what needs to be done to rebuild the walls of western civilization which are crumbling.

I like the imagery of the Biblical Book of Nehemiah. There was a dual effort undertaken by Israel in rebuilding the walls of the City. Some soldiers were stationed with a sword, preventing further devastation and fighting back the enemies of true progress. Others, the ones whose work was even more important, were wielding trowels and cement, rebuilding the walls of the City. So it must be with those of us who recognize the truth that the so-called "Abortion Right", created by judicial whimsy by the Court in Roe v Wade, must be fought with a sword while we rebuild a culture collapsing around us.

I served as co-counsel on three US Supreme Court cases involving pro-life speech and religious freedom issues. They involved a strategic decision to use an incremental approach to holding back the further erosion of the infrastructure of our Constitutional rights as Christians who are also citizens so that we could continue our task of seeking to influence the culture. I have regularly maintained and written that the end of Roe will not be the end of legal abortion. Rather, it will result in the necessity of battling this out in every State. However, I believe that it will buy us the time to rebuild the Walls on a number of levels.

Not unlike segregation and slavery, the so called "abortion right" is wrong, it is immoral, it is unjust. Dr. Martin Luther King, Jr. in his stirring "Letter from a Birmingham Jail" wrote "An unjust law is a code that is out of harmony with the moral law." We must work to rebuild an acceptance that there even is an objective Moral law, based upon which we live our lives together and promote a truly just and compassionate society where the common Good is served.

However, as we do that, we need to do all within our power to ensure that there is not one more vote on the US Supreme Court to enshrine the Roe v wade Precedent any longer. Too many young lives continue to be taken and too much blood shed through the unjust War on the Womb which has been waged under the cover of that horrid decision. The Police Power of the State has enforced its perfidy. I am not a fan of the emphasis on Judicial "Strict Constructionism" as a panacea. It has permeated the language and the approach of the "conservative" movement and brought no change to the current proliferation of abortion. In fact, I have written that the co-opting of Catholics and other Christians concerned about true social justice by the "religious right" has sometimes undermined progress.

In the beginning of the Primary season of the Presidential contest in the United States which led up to this current General election quandary we now face, I found it reprehensible that certain "conservative" public personalities who purported to be "pro-life" were willing to support former Mayor Giuliani. They justified such action because he was purportedly a "strict constructionist" and would appoint Justices who were strict constructionists. The man is an unabashed proponent of abortion as a constitutional "right", even though it violates the Natural Law.

However, we now face the two candidates as we enter the General election. I am not happy with either candidate. I wrote the article to which you respond to share with our readers how I will approach the next few months as both of these candidates lay out their policy positions.

I will not support a candidate who promises to appoint Justices who will continue to perpetrate the injustice of calling Abortion, the taking of innocent human life, as a "right" by securing the Precedent of Roe v wade. Particularly because I know that he promised Planned Parenthood that, if elected, he would use his Office to make appointments to the Bench who would protect and secure the decision.

Sorry Doug, I disagree with you again.

However, I value your intelligent presentation, believe in your sincere Catholic faith and will continue to provide you with a forum for your writing.

Who knows, if your candidate becomes the next President of the United States, you may be one of the voices of truth on the issue of the fundamental Human Right to Life which helps him to not only change his mind but help our Nation to recover our moral compass and end the slaughter of children in the womb.

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