The senior undergraduate course in American constitutional law touches a host of moral issues buffeting our country today. This includes abortion, euthanasia, pornography, hate speech, affirmative action, rights of the family, same-sex marriage and the death penalty. Then there are the problems of war and peace, economic justice, environmental protection, church-state relations and the rights of political participation. You might even add stem-cell research and a human cloning to the list.
Catholic moral and social teaching would be directly relevant to all of these topics were they to be taken up in a course on ethics or moral philosophy. But how would—or should—these issues be treated in the standard Notre Dame undergraduate course in constitutional law?
In several of his inaugural speeches as University president, Father John Jenkins, CSC, emphasized the critical importance of Notre Dame’s Catholic identity, presumably underscoring, as the University’s mission statement reads, our “special obligation and opportunity . . . to pursue the religious dimensions of all human learning.”
These presidential addresses have prompted me to reflect on the connection between the University’s mission and the manner in which I teach American constitutional law. As a secular academic enterprise with its own standards and methods of analysis, the teaching of American constitutional law seems to draw little direct inspiration from Catholic religious values as such. Yet this course might serve as a model of how teaching and scholarship at a Catholic university can be carried out in a distinctive way.
An understanding of how or why the mission of exploring “the religious dimension of all human learning” might play an important role in this course requires a look at the number, quality and mix of students who have elected to take it. During the 35 years or so that I have been teaching this senior undergraduate course, upwards of 4,500 students have patiently plodded through it. Hundreds of these students have gone on to the nation’s top law schools. Nearly all enjoy successful law practices, and dozens hold responsible positions at every level of government. Several sit on state and federal courts; many have served as clerks in the federal judiciary. A few have gone on to clerk for justices of the U.S. Supreme Court. One serves as an aide to the attorney general, and another has just won a prestigious fellowship in the solicitor general’s office.
No doubt about it: Notre Dame students are making an impact in the field of law. It is the University’s hope that the values they take from here will inform their legal stewardship.
Although constitutional law is offered by Notre Dame’s Department of Political Science, 40 percent of the students taking it are majors in other departments, mainly English, history, philosophy, American studies and the program of liberal studies, each of which, like political science, is housed in the College of Arts and Letters. Additionally, constitutional law draws students from the colleges of science, engineering and business, many of whom are testing their aptitude for the study of law. They soon learn that constitutional law as I teach it is anything but a pre-professional law course. My purpose is not to make legal technicians out of undergraduates. That’s the business of a law school. At the college level, constitutional law, in my view, should be taught as a course with deep connections to the humanities and social sciences where, serendipitously, Catholic values are also likely to play a central role.
I hasten to repeat that the standard constitutional law course, like a course in history, politics or economics, is a secular subject with its distinctive approaches to research and teaching. Undergraduate courses in constitutional law, like those offered in American law schools, typically focus on the work of the Supreme Court—that secular magisterium entrusted with pronouncing on the meaning of the Constitution. Such courses, topically organized around particular constitutional provisions, are standard offerings because the federal judiciary is regarded as supreme in the exposition of the law of the Constitution. Although presidents, Congress and the states have often denounced and occasionally defied Supreme Court rulings, the principle of judicial supremacy in the interpretation of the Constitution has been established doctrine at least since 1803.
The course is organized around a set of canonical cases—judicial opinions—chosen to introduce students to what the Supreme Court says the Constitution means and how the court says it is to be interpreted. Along the way students may be asked to explore, as the Supreme Court itself often does, when and under what circumstances it should nullify laws and policies enacted by legislative majorities.
As for how the Constitution is to be construed, here, too, a canonical tradition prevails. While the Supreme Court has often been described as a political institution with discretionary power as wide as a legislature’s, the court has bound itself to methods of interpretation designed to keep judges from importing their personal moral and political views into their decisions. This is what it means to be guided and bound by law instead of whim. The canon includes textual arguments tied to the words and clauses of the Constitution, doctrinal arguments based on prior judicial rulings, historical arguments traceable to the original intent of the Founding Fathers (or to the nation’s history and traditions) and structural arguments rooted in visions of the political order projected by the Constitution as a whole.
All these methods are designed to limit dramatic and sudden changes in law. Occasionally, however, one also finds the court employing ethical arguments yoked to contemporary societal values and driven by the notion of a living constitution capable of adaptation to the peace and good order of a morally pluralistic society.
How, if at all, should my teaching incorporate the resources of the Catholic intellectual tradition? My first obligation is to respect the essential secularity of constitutional law as a scholarly discipline, so the course should not become one of Catholic constitutional theory. Constitutional law, however, does invite inquiry into the meaning of liberty, equality, fraternity, personhood, general welfare, free exercise of religion and even the notion of balance in the exercise of governmental power. These values, while deeply anchored in the liberal arts, play an equally central role in Catholic thought.
It is possible to read the Constitution in the light of Catholic teaching on the social and moral order, much as others might interpret it from some secular ideal of political morality. This would be an interesting way to teach the Constitution, but I’m an American constitutional scholar committed to teaching American constitutional law. This emphasis makes it difficult to engage constitutional law with Catholic thought in any systematic way over the course of a semester. Time barely permits me to deal with the Supreme Court’s work-product on its own terms.
Yet the promotion of dialogue between faith and culture—here legal culture—encouraged by John Paul II in Ex Corde Ecclesiae is possible by enlarging the frame of reference in which constitutional law is studied. The framework adopted in my course follows the design of American Constitutional Law: Essays, Cases, and Comparative Notes, a course book of which I am a co-author. Although used mainly in secular schools, this book calls for a searching inquiry into the political and social morality implicit in the American constitutional order. It invites students to engage the work of the Supreme Court with the fullness of their humanity and to assess constitutional decisions in the light of their respective disciplinary perspectives.
The Catholic tradition may be reflected more empathetically by examining the court’s opinions within this broader context than by focusing narrowly on whether particular judicial outcomes are “right” or “wrong” in terms of Catholic principles. The Supreme Court seldom treats such constitutional values as liberty and equality, separation of powers or the free exercise of religion in isolation from one another. Constitutional decision-making is largely an exercise not only in balancing competing rights and values but in weighing individual liberties against collective interests.
Such competing rights and interests—individual and collective—are also at the center of clashes between state and federal power and often overarched by a deeper conflict between the values of democracy and constitutionalism. Indeed, constitutional law is largely a matter of reconciling popular democracy with the fundamental values set forth in the nation’s governing charter. Students need to appreciate the inescapable moral ambiguity associated with attempts to reconcile these tensions.
Consider constitutional challenges to state laws on abortion or the death penalty, issues on which the magisterium has spoken. At the threshold, however, these cases often involve questions not of morality (Catholic or otherwise) but of federalism and institutional competence. Such inquiries deal with the critical issues of which level of government ought to enact a right-to-life policy and whether it should be decided by a popularly elected legislature or an electorally unaccountable judiciary. But wait! These are morally significant issues because they implicate the value of subsidiarity—that is, nothing should be done by a larger or higher organization that can be done as well by a smaller or lower entity. This is a notion deeply rooted in Catholic social teaching
Even Justices Antonin Scalia and Clarence Thomas, Catholics to the bone, seem convinced that the Constitution places these right-to-life issues squarely in the hands of state legislative majorities. Accordingly, especially in the death penalty context, they generally vote to sustain such laws, even in the face of contrary Church teaching.
Subsidiarity was also an issue in Gonzales v. Oregon, the recent case challenging the U.S. attorney general’s personal effort to block Oregon’s physician-assisted suicide law. Six of the nine justices, over the dissents of Scalia and Thomas, ruled that federal law did not authorize the attorney general to nullify a policy approved by the state’s voters. The majority nevertheless advanced a high ethical principle, namely that justice cannot be achieved by the exercise of governmental power outside the framework of law—here the higher law of the Constitution. Even for Scalia and Thomas, the case had less to do with moral objections to assisted suicide than with their view that the court should defer to the attorney general’s interpretation of federal law. Given these lines of argument in the majority and dissenting opinions, would an emphasis on Catholic thought in the course prompt me to expend time and energy on the moral issues in the background of Gonzales at the expense of getting students to understand the fundamental principles of American federalism and separation of powers? I think not.
How then might an exploration of religious thinking come into play when the constitutionality of such a policy comes directly before the court? Consider, for example, a challenge to state law criminalizing homosexual sodomy. The court has always acknowledged the importance of religious beliefs, entrenched notions of the “good life” and respect for the traditional family that have shaped many of our laws. Yet the U.S. Constitution elevates liberty into one of this country’s highest values, especially in the realm of personal morality. So, as Justice Anthony Kennedy, still another Catholic member of the Supreme Court, noted in the 2003 case that struck down a state’s criminal sodomy law, “our obligation is to define the liberty of all, not to mandate our own moral code.”
The court struck down the law by considering changing social and moral values along with a broad reading of its prior case law vindicating the general right to sexual privacy. Lawrence’s outcome strikes me as morally sound although its reasoning does not. The court could easily have invalidated the law without elevating intimate homosexual relations into a value equal in dignity to the normal marital relationship. The case nevertheless provides liberal arts students with an opportunity to think about the general link between law and morality. Both Saint Thomas Aquinas and the theologian John Courtney Murray, S.J., remind students that law’s reach into the sphere of personal morality should be limited to what is necessary for social peace and good order in a morally divided society. Unlike the Protestant Evangelical mindset, which insists on merging the realms of law and morality, the Catholic perspective takes a more limited view of law’s capacity.
In Western liberal democracies, as Murray himself suggested, constitutions are rarely designed to promote virtue. More often they seek to ensure that liberty and democracy prevail over those who would threaten both. What Catholic teaching does support, in full harmony with the American legal tradition, is the importance of state support for those seed-beds of virtue more properly found in such non-state institutions as schools, families, religious communities and civic associations.
A related point is that the real-life stories embedded in the 100 or more constitutional cases covered in the typical constitutional law course do not always have happy endings or just results. For one thing, in our American system of adversarial justice somebody has to lose, and often the bad guys—pornographers, hate speech mongers, flag burners—win when the Supreme Court sets out to defend constitutional values applicable to society as a whole. For another, some constitutional cases end in tragedy, even to the point of tolerating evil. Examples of constitutional evils might include the Dred Scott decision of 1857 relegating African Americans to permanent non-citizenship, the 1944 decision constitutionalizing the incarceration of Japanese Americans in southwestern detention camps and perhaps contemporary cases upholding the death penalty.
My favorite example of constitutional evil is Prigg v. Pennsylvania, an 1842 case in which the Supreme Court struck down a state law designed to free fugitive slaves. Yet a persuasive argument supported the decision because here state law conflicted with a federal statute—the Fugitive Slave Act of 1793—requiring the return of slaves escaping into the North. Despite the evil of slavery, an institution then sanctioned by the Constitution itself, Justice Joseph Story, writing for the court, made clear that federal law trumped state law under the Supremacy Clause.
Here again I hope students will see the often troublesome relationship between law and morality. Story, who was morally opposed to slavery, was chastised for compromising his principles in favor of an immoral law. But he may have had a larger moral strategy in mind, one dictated by a good Aquinian guideline known as “practical reason.” By upholding a national law favoring slave owners in 1842, thus reinforcing the principle of federal supremacy over the slave trade, Story not only helped to forestall a bloody war by 20 years but also signaled to the nation that this same government could abolish slavery, as it did years later when political conditions were ripe for doing so.
Clearly, constitutional analysis within a political democracy is not the same as moral reasoning within a particular religious or philosophical tradition. Of course, any of the standard approaches to constitutional interpretation could easily be manipulated to yield outcomes compatible with Catholic social and moral teaching. Intellectual gamesmanship of this kind, however, retards self-conscious moral reflection, inhibits the exercise of practical reason and detracts as well from the capacity of the humanities to provide students with the normative standards they need to assess the Supreme Court’s work-product.
If constitutional cases are reflections on the meaning of America, as I maintain, then students need to probe beneath the facade of judicial reasoning known as formal doctrinal analysis to examine the deeper recesses of thought at play in the judicial opinions under study. Liberal learning in a faith-based setting provides students with the intellectual tools to undertake this task.
The lens of philosophy, history, political science and even psychology and literature, as well as the Catholic tradition, offer students a basis for assessing constitutional decisions touching issues of rights and justice. In short, constitutional cases can be read as essays on political, social and moral philosophy, and even contrasted with literary and artistic as opposed to legal images of the real—or ideal—life-world. Guided by their moral intuitions drawn from liberal learning, Notre Dame students might be encouraged to assess these cases by reference to their disciplinary perspectives.
For starters, one might refer students to the rich deposit of natural law thinking bequeathed to us by Aristotle, Thomas Aquinas and the Catholic tradition more generally, a resource with strong links to an earlier tradition of American constitutional thought that continues to enjoy an appeal well beyond sectarian religious lines. The Declaration of Independence, like Thomas Paine’s Common Sense, captures the essence of this tradition. Thomas Jefferson and Paine believed that the purpose of constitutional government is to protect the God-given natural rights of all persons. Natural morality once provided the basis of civic obligation and indeed the meaning of community itself. Not until our own time did the Supreme Court advance a theory of rights rooted in abstract and generalized principles divorced from all particularity and historicity.
This brings the question of whether the Supreme Court can—or should—address modern problems of constitutional governance by reappropriating elements of the natural law tradition. Or, alternatively, whether contemporary constitutional thought yields insights that would urge our students to rethink aspects of the natural law tradition in the interest of the truth that reason informed by faith seeks to discover.
Consider, for example, the Supreme Court’s superintendence of political disputes such as those involving legislative apportionment, campaign finance regulations or restrictions on the right to vote. Unlike the typical law student, whose professional interest is one of mastering formal rules of law and manipulating them in the interest of clients, liberal arts students will want to know what vision of politics or society drives these cases. For example, is the court’s vision of the political process one of democratic deliberation, pressure group politics or some model of strategic decision-making? Students might investigate whether the justices decide these cases by looking downward to political reality as they see it or upward toward some detached conception of the public good. The purpose of such questioning is to encourage students to enter into a conversation with the justices, the aim being, as Notre Dame’s mission statement reads, “to create [in our students] a sense of human solidarity and concern for the common good that will bear fruit as learning becomes service to justice.”
Mindful of this mission, and again drawing from their liberal studies, students might continue to consider the issues of abortion or assisted suicide. To what extent are constitutional cases involving these issues driven by respect for the idea of humanity? Of human dignity? Students might ask whether such respect requires a juridical theory virtually vindicating absolute self-determination in matters touching on what the Supreme Court calls one’s “own concept of existence . . . and the mystery of human life.”
What image of the human person, marriage or family informs the Supreme Court’s holding that the personal liberty protected by the Constitution covers the right to procure an abortion for any reason in the early stages of pregnancy? Some students will readily conclude that this rule of law rejects the biblical view of marriage as two in one flesh and the family as an integrated moral unit. Nevertheless, critical self-reflection means that students should manifest some degree of imaginative sympathy with the court’s position, to discern the wisdom it may contain, even while assessing that position in the light of their moral intuitions, natural law ethics or the Catholic tradition.
Should the abortion view of liberty be extended to assisted suicide? Some students might consider whether the constitutional recognition of such a right promotes a Nietzschean vision of humanity, or mull over what such a rule says about John Donne’s observation that “No man is an island.” What would it say about the court’s image of community and human solidarity? An English major might wonder whether the images or values of suffering represented in Western literature and art illuminate the legal issues at play in the assisted suicide—or even the death penalty—setting. Is there a right to die with dignity and if so under what conditions? Should these conditions be laid down by the Supreme Court in constitutional litigation, by representative legislatures or by the people voting in popular referenda?
It also is worth considering what, if anything, the Catholic tradition has to say about these institutional measures. Does natural law thinking throw any light on these substantive or institutional issues?
As all of these queries might suggest, constitutional law as taught at Notre Dame should not be isolated from the liberal arts. Like lasers, the liberal arts amplify the critical light we are able to shed on judicial opinions and their underlying assumptions and visions of the constitutional order. What I hope my class does, what Notre Dame’s mission is, should alert students to the importance of these deeper questions and urge them to reflect on them in the light of their own moral, philosophical and political commitments ideally informed by the riches of the Catholic intellectual tradition.
Donald Kommers was the Robbie professor of political science and concurrent professor of law at Notre Dame. He died in December 2018 at age 86.