Hon. James L. Buckley*
The Supreme Court is not exempt from the law of unintended consequences.
The Court may have anticipated the robust industry that Roe v. Wade
would launch. But surely, it did not foresee the intensity and duration
of the ensuing debate over abortion, or its extraordinary impact
on American politics. As a Catholic judge who was once an actor
in the political arena, I am concerned here with two notions that
have gained currency as a result of that debate.
The first of these holds that federal judges serve as philosopher
kings, that they are endowed with the authority not merely to interpret
the law, but to ordain it. That, of course, is the implicit premise
behind the controversy over recent Supreme Court nominations, which
has focused largely on the nominees' putative views on essentially
political questions. The second asserts, in effect, that it is un-American
to advocate any public policy that is derived from religious teachings,
the implication being that such advocacy is somehow subversive of
the religion clauses of the First Amendment. Thus it seeks to impose
on the debate of important public issues a code of "politically
correct" restrictions that would crowd religious perspectives
out of the political marketplace.
Because their church has declined to trim its moral teachings to
accommodate contemporary fashion, American Catholics have been particularly,
though not uniquely, affected by these new perceptions of the courts
and the First Amendment. Given the Church's teachings on abortion,
it is hardly surprising that Governor Douglas Wilder and other Americans
who think of judges as policymakers should express concern over
the nomination of a Catholic to the Supreme Court, the Constitution's
prohibition of religious tests for public office notwithstanding.
Moreover, Catholics who advocate laws to protect the unborn are
routinely criticized for attempting to "impose" their
religious values on others. At times, it is even suggested that
they have still to prove themselves acceptable participants in American
I propose to address these misconceptions by presenting my own
understanding of the nature and limits of my authority as a federal
judge, and by offering some thoughts on the role of the Catholic
community in America today. But first, it is necessary to place
the discussion in its constitutional and historical context.
The Founders of the American Republic were not afraid of religion.
To the contrary, they thought it essential to the success of their
fledgling government. A common theme that ran through their writings
was that the survival of the Republic, as well as of the liberties
it was intended to protect, ultimately depended on what the Founders
referred to as the "republican morality" of its citizens.
They further understood that there was a link between religion and
virtue. Thomas Jefferson, hardly a "churched" man, referred
to religion as the "alpha and omega of the moral law";
John Adams asserted that "our Constitution was made only for
a moral and religious people"; and in his Farewell Address,
Washington warned that "reason and experience both forbid us
to expect that national morality can prevail in exclusion of religious
In sum, we live in a society in which the importance of religion
has always been recognized. And while the First Amendment forbids
laws "respecting an establishment of religion," it has
never required that the state be isolated from exposure to religious
principles. To read the Constitution as though it did would be to
rob religious liberty of meaning. The men gathered in Philadelphia
who outlawed religious tests for public service surely had the practical
common sense to knowif some contemporary ideologues do notthat
in those roles in which public servants are expected to bring their
personal judgments to bear, including judgments as to what is right
or wrong, moral or immoral, the views of religious individuals will
inevitably reflect their religious beliefs. It is, quite simply,
fatuous to suppose that a public official can check the religious
components of his convictions at the door before entering the council
chambers of government.
Thus under our constitutional arrangements, a President and members
of Congress need never apologize for the fact that their views or
votes reflect their religious convictions. As members of the elected
branches of our government, they are expected to engage in the formulation
of public policy subject only to the restraints imposed by the Constitution.
The role of a federal judge, however, is of a significantly different
kind. As an unelected official, he can claim no mandate to reconstruct
public policy. Rather, his constitutional duties are exclusively
judicial: it is his job to give force and effect to the law, whether
he agrees with it or not; and that is responsibility enough.
When I took my oath of office, I solemnly swore that I would "administer
justice without respect to persons, and ... faithfully and impartially
discharge all the duties incumbent upon me as a United States Circuit
judge, according to the best of my abilities and understanding,
agreeably to the Constitution and laws of the United States."
The authority that was vested in me upon taking that oath is derived
exclusively from the Constitution. Thus the justice I am sworn to
administer is not justice as I might see it, but justice as defined
by the Constitution and laws and legal traditions of the United
States. And if I consciously deviate from that body of law to do
justice as I see it, I violate my oath of office and undermine the
safeguards embodied in the Separation of Powers. Should I ever be
asked to hear a case in which the application of the law might result
in my material complicity in an immoral act, I would have to examine
my conscience and, if it so dictated, recuse myself. What I may
not do is bend the law to suit my conscience.
A judge, of course, is no more relieved of moral responsibility
for his work than anyone else in either private or public life.
The duty of a federal judge, however, is to be measured by the requirements
of his office. A man cannot act as the impartial arbiter of the
law unless he is willing to apply it. That, in part, is what is
meant by judicial temperamentthe ability to subordinate personal
feelings and beliefs to the constitutional duties assumedwhat
Robert Bork has described as the principled jurist's "continuing
self-conscious renunciation of power."
I recognize that the commands of the positive law are not always
self-evident. If they were, the work of my court would be far lighter
than it is. Nevertheless, whether these commands are clear or opaque,
the same underlying principle applies. When faced with ambiguities,
or with problems that fall within the interstices that inevitably
exist within and between laws, a judge is necessarily called upon
to exercise a large measure of discretion. In doing so, he will
inevitably bring to that task everything that he isthe books
he has read; his experience as spouse, parent, and public official;
his understanding of the nature of man and the responsibilities
of citizenship; his sense of justice; even his sense of humor. A
judge is not a machine, and the judicial function cannot be displaced
by a formula or measured by an equation. But while his own experience
will necessarily affect how he reads the law, it is a judge's task
to discern the governing legal principles as objectively as he can,
and then to apply them.
Given the Anglo-American common law tradition, in which precedent
builds on precedent, an unconscious evolutionary development of
the law is inevitable even when predicated on the written text of
a constitution or statute. It ought to be clear, however, that in
a governmental system based on the rule of law, federal judges have
no license to insert their own views of what is right or just into
constitutional or statutory law. To put it bluntly, no federal judge,
however wise, has the moral or political competence to write the
laws for a self-governing people; and no American, Catholic or not,
should wish it otherwise.
But while it is improper for any judge to use his position to smuggle
religious doctrines into the law, the law may well benefit from
a religious judge's approach to his work. To the degree that there
is such a thing as a Catholic ethos, and I believe there is, it
nurtures a respect for and acceptance of lawful authority and tradition,
and it cultivates a sense of work as vocation. Moreover, as Catholics
continue to believe in a Purgatory and Hell, they understand that
a betrayal of trust will be punished in the next world if not in
Which brings us to the issue of the role of the Catholic community
in American political life. It is widely observed that we live in
an increasingly secular and even anti-Christian age. While some
may celebrate the fact and others decry it, surely no one would
disagree with the general thrust of this description of our time.
Many of the moral beliefs that have traditionally informed our public
life are being questioned as never before. These beliefs derive
ultimately, though perhaps not exclusively, from Christian political
thought, but their assimilation by the law has made them part of
the intellectual and moral patrimony of all Americans regardless
Taken together, these beliefs constitute what has been called "the
American Proposition." And it is that proposition, rather than
a particular teaching of a particular congregation, that is now
under assault. We seem, in short, to be at some risk of losing our
identity as a people whose public life is rooted in "the laws
of Nature and Nature's God." If that is the caseand a
good argument can be made that it isCatholics are not alone
in their concern for the future of American public life.
This suggests that today the Catholic community may be facing new
challenges, new responsibilities. [I]t may fall to Catholics, often
the victims of American intolerance, to draw on their own faith
to defend the American political tradition from those who would
strip it of its moral content. Such a role would be paradoxical
indeed, for Catholics, after all, have long suffered the burden
of being something of a suspect class.
While old prejudices die hard and while there may be some backwaters
of the body politic where such opinions are still entertained, it
does seem to me that outright vulgar nativism is less widespread
than it once was.
Nevertheless, it is the case that what is true of the general public
may not be true of certain members of what Mencken called the "thinking"
class. Many, in fact, would agree with Peter Viereck that today
anti-Catholicism is the anti-Semitism of the intellectuals. I am
neither a philosopher nor a historian, but there does seem to be
a species of intellectual who simply cannot abide the thought that
Catholics can or should take their religion seriouslyseriously
enough, that is, to have it inform their behavior as free citizens
of a republic. For intellectuals such as these, Catholics, like
children of old, may be seen but not heard. When Catholics do venture
to make their views known in the affairs of state, they are frequently
accused of trying to "legislate" morality, or to "impose
their morality on others," or, more recently, to violate some
unarticulated "truce of tolerance" under which Catholics
are permitted the same privileges as other citizens.
The truth of the matter, of course, is that we have always legislated
morality, and those who would claim otherwise are ignorant of both
history and the law. Whatever else might be said, it seems clear
that it would have struck previous generations of Americans as only
slightly less than absurd to say that morality cannot or should
not be legislated. Americans have always debated and will,
I hope, continue to debatethe propriety or prudence of incorporating
certain moral propositions into the law. But to say that morality
and law do not or should not mix flies in the face of everything
we know about American history, or for that matter, about the history
of every system of law since at least the Code of Hammurabi. Nor
have we, in this "enlightened" age, ceased to legislate
morality. How, for example, are we to describe the civil rights
laws of the past generation except as the codification of a moral
imperative? And what about our various social welfare laws? Are
they not expressions of a corporate responsibility for the old,
the sick, and the poor among us?
Much, if not most, criticism of Catholic activism arises in the
context of such sharply divisive issues as abortion and homosexual
rights, about which the doctrinal teaching of the Church is decidedly
unfashionable. While Catholics are not the only citizens whose views
on these issues are out of fashion, they nevertheless come in for
more than their fair share of obloquy when they seek to effect changes
in government policy. It was not very long ago, however, when the
laws of virtually every state took a rather uncompromising stand
against both abortion and homosexuality. Those laws were enacted
by legislatures and enforced by courts peopled by men and women
who would have headed for the hills at the very thought that they
were carrying out the bidding of the Roman Pontiff.
The political wisdom of such laws has been, and will continue to
be, debated by people of every imaginable religious disposition,
including nonbelievers. Some critics of the Catholic Church nevertheless
find it convenient to imply that the only thing controversial is
the participation in these debates of Catholics speaking as Catholics.
They assert that we may legitimately enter public debate on questions
of morality only to the extent that we park our religious doctrines
at the door. It was this assertion, indeed, that prompted Richard
John Neuhaus to remark that, for some people, the only good Catholic
seems to be a bad Catholic.
The real issue in policy debates about public morality is not whether
a particular stance happens to coincide with the teachings of a
particular congregation. The real issue is whether that stance is
consonant with the moral disposition of the American people broadly
understood, that is to say, without reference to any religious affiliation.
One does not have to be "churched" in order to hold fairly
strong views on questions of public morality.
Here it is necessary to observe that much of the intellectual hostility
directed toward Catholicism seems at times to be only incidentally
about Catholicism as such. It is true that Catholicism, or teachings
rightly or wrongly ascribed to Catholicism, are frequently targeted
with special venom. That criticism, however, may be only part of
a larger assault against a broader political and moral heritage,
a heritage for which the Church just happens to be a particularly
strong and articulate exponent in the modern world. In short, not
only Catholicism and the opinions generally associated with Catholic
belief have become the objects of ridicule or caricature; the contumely
is directed at any set of opinions, or any source of authority,
whether specifically religious or not, that relies upon or points
toward "the laws of Nature" as a fixed standard for the
guidance of human behavior.
If this is really the case, what is at stake is not just the position
of Catholics qua Catholics but the philosophical foundations of
American democracy itself. Those foundations are now under attack;
and American Catholics owe it to their country to enlist in the
defense of traditional American values.
The phrase "American Catholic" is not an oxymoron. To
the contrary, as one surveys the American landscape today, one can
find no community that believes more deeply in the truths of the
American Proposition -- truths that are as fresh and relevant today
as they ever were. Those truths are under assault by a new breed
of zealots who would redefine the American character. If Catholics
will join with others who understand the nature of their patrimony,
if they will speak out in support of the moral principles inherent
in the American Proposition, they may well play the pivotal role
in preserving this Nation as "the last, best hope of earth."
*Judge Buckley sits on the U.S. Court of Appeals for the D.C. Circuit.
He is a former United States Senator from New York. This is an abridged
version of an article that originally appeared in First Things:
A Monthly Journal of Religion and Public Life (Feb. `92, No. 20),
and is reprinted with permission.