In the media kerfuffle that followed, the Supreme Court’s recent 5-3 decision in Whole Women’s Health vs. Hellerstedt, which overturned Texas’ law requiring abortionists to have hospital privileges, among other things, I received an email from an American Catholic politico lamenting the ruling.
A duly lamentable ruling, I conceded. Yet the gentleman went further, and asserted that the proper course of action for American Catholics now is to “dig in, and work to fill Justice Scalia’s seat” on the Supreme Court.
And here I take issue, as I believe should fellow Catholics who desire consistency in doctrine and logic.
WHAT IS SUBSIDIARITY, ANYWAY?
The principle of subsidiarity is the common sense notion that most political matters are best handled on a local level. Most people of good will, including political pragmatists, easily see the wisdom of this principle.
But the church’s view of subsidiarity necessarily considers the morality of acts which support, or transgress, local control. Thus, Pope Pius XI stated in his encyclical Quadragesimo Anno that “it is an injustice and at the same time a grave evil and disturbance of right order to assign to a greater and higher association what lesser and subordinate organizations can do. For every social activity ought of its very nature to furnish help to the members of the body social, and never destroy and absorb them.”
Subsidiarity, then, compels Catholics to contemplate the morality of a Supreme Court that regularly destroys and absorbs local pro-life legislation. But it also impels Catholics to do more than simply repopulate the high court with pro-life destroyers and absorbers. Indeed, as stated in The Federalist Papers, our Founding Fathers were in agreement that the Supreme Court was intended to have “neither force nor will but merely judgment: and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.”
Despite appearances, the Supreme Court does not speak ex cathedra on morals. On the contrary, its history is rife with decisions that reduce human dignity to something less than being made in the image and likeness of God. Most infamously, Roe v. Wade denied that an unborn child is a person. Scott v. Sandford denied that an African-American could be an American citizen. Buck v. Bell upheld eugenic sterilization of the mentally disabled. My dark horse candidate for worst decision is Calder v. Bull, which enshrined skepticism, rather than natural law, as the guiding principle in American jurisprudence.
SUBSIDIARITY IN ALASKA
So how should Catholics respond when a branch of the federal government attempts to violate principles of subsidiarity and morality?
In fact, Alaskans have seen subsidiarity in action in recent legislative sessions. For example, in an attempt to nationalize government identification, Congress passed the Real ID act in 2005. This was decried by many western states, and the Alaska legislature passed a law in 2008 preventing the state from spending money to aid this federal mandate. Similarly, in 2013, the Alaska legislature passed a law prohibiting state and local governments from implementing federal gun control measures threatened by President Obama’s executive branch. On both occasions, the Alaska legislature cited that it was its duty to curb federal action under the state and federal constitutions.
This is not to say that an act supporting the principle of subsidiarity makes it morally good, much less prudent. Alaska’s most recent foray into subsidiarity was the legalization of marijuana, an act which defies the federal government’s classification of marijuana as a Schedule I — and technically illegal — substance. That was a “win” for subsidiarity, but as the bishops of Alaska pointed out in October 2014, the victory has only unleashed “significant risks to the physical and spiritual health of our state.”
Critics have pointed out that Alaska’s recent anti-federal legislation is mostly political grandstanding. They have a point. But the history of these United States belies the notion that this has always been so. States nullified numerous acts of Congress in the first half-century after ratifying the Constitution, most famously President John Adams’ Alien and Sedition Acts via the Virginia and Kentucky resolutions. The Kentucky resolution, drafted by future president and Declaration of Independence author Thomas Jefferson, stated that while the federal or “general” government had received certain definite powers in the Constitution, the “residuary mass” were reserved to the states by right of self-government. This idea is explicit in the Tenth Amendment, and sounds consistent with the Catholic Church’s teaching on subsidiarity.
STATES’ RIGHTS AND THE CHURCH
But a further objection may — and, in fact, should — be raised by Catholics: are states’ rights tactics such as nullification consonant with the church’s teaching on subsidiarity?
Two tenets of Catholic social teaching provide an answer to this question. The first is the enunciation of the principle of subsidiarity by Pope Saint John Paul II in his teaching, “ Centesimus Annus,” which states, “A community of a higher order should not interfere in the internal life of a community of a lower order, depriving the latter of its functions, but rather should support it in case of need and help to coordinate its activity with the activities of the rest of society, always with a view to the common good.”
Returning to the example of Whole Women’s Health v. Hellerstedt, Texas is a lower-order community and the federal government a higher-order community, but only in those areas enumerated and specified by the federal Constitution. The rest are reserved to the states, as intimated by the Tenth Amendment.
In the case of Texas’ abortion restriction — and, it should be noted, all supposed Supreme Court decisions that override state prohibitions on abortion — the common good has not been furthered by the Supreme Court’s whimsical interpretation of the Fourteenth Amendment. Far from it! Leaving aside the continued violence done to the English language and the plain meaning of the Constitution, the Supreme Court’s ruling does violence to the prerogative of the state of Texas to administer civil and criminal justice.
This right to administer justice is no mere window dressing. It is reserved to Texas, and every state, by the Tenth Amendment. It is reckoned in the Federalist papers as “the most powerful, most universal, and most attractive source of popular obedience and attachment … being the immediate and visible guardian of life and property.” And I must here underline the obvious proposition that Texas, not the Supreme Court, is the proper government organ to prevent the murder of innocents in Texas. So much for the common good accomplished by the Supreme Court’s decision.
AQUINAS & IMPORTANCE OF CUSTOM
But a second objection arises: won’t nullifying or obviating a Supreme Court decision cause evil as well, insofar as it disrupts our contemporary public order?
This is a valid point, too, and one which Saint Thomas Aquinas considers in his work, “Summa Theologiae.” Saint Thomas acknowledges that while changing human law may serve the common good, one should not forget that “the mere change of law is of itself prejudicial to the common good because custom avails much for the observance of laws, seeing that what is done contrary to general custom, even in slight matters, is looked upon as grave.”
Because changing law unavoidably damages custom, Saint Thomas concludes that “human law should never be changed, unless, in some way or other, the common good be compensated according to the extent of the harm done in this respect.” This may come about from “a very great and very evident benefit conferred by the new enactment,” or when the existing law is “clearly unjust, or its observance extremely harmful.”
As I read Saint Thomas, he would support local legal actions that obviate a Supreme Court opinion “insofar as the common good be compensated according to the extent of the harm done to the general custom.” Here, the “general custom” is the supremacy of Supreme Court decisions over state matters. But, as stated above, it is a supremacy limited by the terms of the Constitution. Even then, the Supreme Court enjoys only such power as granted by the Executive and Legislative branches of the federal government.
Animated by these principles, Catholics of good will can and should debate how best to apply the church’s teachings on subsidiarity in concert with the traditions of this country, one of which is nullification. And from our Catholic politicos, we deserve better than the ham-fisted admonition to fill an empty seat of judicial tyranny with a better tyrant.