Published On: October 20th, 2020

In an interesting statement by Senator Dianne Feinstein of California at a hearing regarding the judicial fitness of Amy Coney Barrett, Senator Feinstein suggests that the dogma or tenets of Judge Barrett’s faith live deeply within her and are therefore a problem to her candidacy as appellate judge. Are deeply held tenets of one’s faith disqualifying? What seems to be implied is that if the tenets of faith are in conflict with Positive Law then a practicing Protestant, Catholic, Jew, Muslim, or any other belief system might overturn precedent, or established Positive Law, specifically rulings by the Supreme Court. The Senator’s chief concern is the sanctity of rulings relative to abortion – Roe v. Wade (1973) and Casey v. Planned Parenthood (1992).

First, by way of review, the Supreme Court of the United States serves as the highest appellate court and its rulings become the Supreme Positive Law of the Land – Article VI, United States Constitution. The Justices themselves decide what cases they will hear each term, which is a window of sorts into their minds and souls before a decision is even rendered. If they decide not to hear a case, then the next lowest ruling stands as the law. In general, the Court is to avoid “big” Constitutional issues and “political questions” that belong to be decided over time by the people’s representatives, or questions that are not yet “ripe” in terms of legal analysis and need decisions from lower courts before being taken up by the Supreme Court. In modern times the Court has concentrated on cases involving individual rights against government power and proper Due Process before an individual loses his or her Life, Liberty or Property.

Second, it is important that we know what we mean by “the Law.” America’s Rule of Law consists of four buckets or bundles:  Positive Law, which consists of statutes, common law (judicial decisions not at the Supreme Court level), administrative rules, and state Constitutions and the national Constitution); Natural Law, which is God-given and represented in the Declaration of Independence; Moral Law, or the Law of Conscience best represented by the tenets of Judaism and Christianity; and Unwritten Law, which is the Law of courtesy and comity best represented by the friendship of Justices Scalia and Ginsburg. Even though Supreme Court rulings are part of Positive Law, and for the most part deal with statutes and administrative rules that are also part of Positive Law, the Justices themselves should take into consideration ALL four buckets of Law in analyzing an issue legally. Regarding issues relating to abortion, Natural Law tells us through the Declaration of Independence that there are self-evident truths, including an endowment by our Creator to Life. Of course, then, the definition of “Life” becomes of paramount importance. If, for instance, a candidate’s belief system contradicts our country’s Moral and Natural Law, that fact may be disqualifying. If a candidate’s belief system conforms to Moral and Natural Law and merely contradicts an element of Positive Law, that fact may not be disqualifying. The question then, for Amy Coney Barrett, would be, “Does your faith conform to our nation’s Moral and Natural Law?” If the answer is “yes” the examination of fitness moves on to other areas including the candidate’s view of the weight of precedent or past decision-making and the respect it has always had with the Court.

Solomon with sword and baby

A sword was brought in. Solomon ordered, ‘Cut the living child in two and give half to one and half to the other.’ Image Credit: Free Bible Images –

Third, some issues may be outside the proper boundaries of the Supreme Court itself. Some issues are just too hard for nine people to arbitrarily lay on an entire people. You may recall in 1Kings 3, 16-28, the story of Solomon and the two women who claimed a baby was theirs. Solomon was blessed with the quality of wisdom, but this was a hard decision to make. One of the women claimed that a dead baby placed on her bosom was not her child and that the babies had been switched in the night. Solomon asked for a sword and was going to slice the baby in half and give each woman one-half of a child. The woman who was willing to give the child up was thought by Solomon to be the real mother. Our Supreme Court, in Roe v. Wade, tried to play Solomon and figure out a way to uphold the rights of both the mother and the child at the same time. In its wisdom the Supreme Court tried to account for both – the mother in the first trimester and the child in the last. Now, Roehas been replaced by Casey, which abandoned the trimester scheme, and declared that a fetus is not a person for purposes of the 14th Amendment. The 14th Amendment denies any government the power to deprive a “person” in the jurisdiction of a state of the right to Life, Liberty, or Property, without Due Process of Law. Since a fetus is not a person, it has no protections. Since a woman is a person, she has a Liberty interest protected by the 14th Amendment and no government may prohibit or criminalize her decision to abort a non-person. The standard of judicial review in Casey is that no “undue burden” may be placed on a woman’s right to choose an abortion. An “undue burden” is anything that would impair a woman’s physical or mental health. For the purposes of abortion “mental” is very loosely defined and amounts to whatever the woman feels about the issue.

Miss Constitution would differ, then, with Senator Feinstein and thinks that what may be disqualifying is a judicial temperament that does not consider our entire Rule of Law, not just Positive Law, which includes former Supreme Court decisions. Religious affiliations if not in conflict with Moral and Natural Law are irrelevant. One can see using the abortion cases as an example, when all Law is considered and the Supreme Court rules in conflict with Moral and Natural Law, the society may be disrupted, injured, and disquieted. The answer? We need Solomon. If both mother and fetus were to be deemed “persons” perhaps a wise Court could figure out the parameters for each when in conflict as Roe tried to do. Whatever the arrived-at scheme, since the trimester one in Roe is no longer operative, abortion would certainly be more limited and there would be no such thing as the Virginia Governor announcing that a child may be killed after birth. It also reminds us that Judicial Restraint is Solomon-wise and an important quality in an aspiring Supreme Court Justice. Miss Constitution would ask any candidate for the Supreme Court his or her view on the nature and quality of Judicial Restraint, on the nature and quality of Judicial Temperament, and on the nature and quality of precedent in deciding critical cases. Miss Constitution would not inquire into the candidate’s private religious beliefs unless those beliefs are incompatible with what undergirds the total Rule of Law in America.

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    About the Author: Miss C

    M.E. Boyd, "Miss Constitution" is an attorney, author, and instructor in Business, Educational, and Constitutional Law. She has appeared on television and radio and speaks publicly on American history, the founding documents, and current political issues. Her mission is to help citizens understand the Founding philosophies behind the system so that we can-together-help preserve the blessings of liberty and prosperity. Read more about Miss C