50 Pages Posted: 20 Jun 2016
Date Written: 2016
Is there a "Catholic way" to do law? Catholics aiming to be respectable in the eyes of those who defend the U.S. Constitution as "the Supreme Law of the Land" are at pains to convince us that the answer is no. This article argues that the answer is yes, and it does so in conversation was someone, Justice Antonin Scalia, who was certain that the answer was no. It does so, more specifically, in a discussion centered around Justice Scalia's infamous claim, made during a visit to Villanova University School of Law, that just as there is no "Catholic way to cook a hamburger," there is no "Catholic way" to judge.
This article, written as an invited contribution to a volume celebrating the 60th anniversary of the Villanova Law Review, in turn celebrates the ten years of the annual John F. Scarpa Conference on Law, Politics, and Culture at Villanova. Its carefully circumscribed defense of a Catholic way to do law includes conservation also with some of the dozens of other jurists, jurisprudes, philosophers, theologians, and political scientists who have spoken or written under the aegis of the Scarpa Conference, such as Martha Nussbaum, Geoff Stone, Henry Paul Monaghan, Richard Garnett, Paul Kahn, Jesse Choper, Kristin Hickman, John Finnis, Kent Greenawalt, Jane Schacter, Joseph Vining, Judge John T. Noonan, Jr., James Boyd White, Lee Bollinger, Jeremy Waldon, Rick Hills, Bill Eskridge, John Ferejohn, Gillian Metzger, John Manning, Avery Cardinal Dulles, and William Cardinal Levada, to name but a few.
To put the article's thesis epigrammatically, McWorld (to borrow Benjamin Barber's term) begets McLaw, but legal method that is isomorphic with the method of human understanding, which is the essence of Catholic legal method, generates not McLaw but true law, that is, progressively and cumulatively better ordinances of reason for the true common good. As Justice Souter wrote for an 8-1 Court in United States v. Mead (2001), from which Justice Scalia dissented, "Justice Scalia's first priority over the years has been to limit and simplify. But, as Joseph Vining, whose work figures centrally in my defense of a Catholic legal method, has both observed and contended, "law leaves nothing out," "not person, nor present, nor freedom, nor will, nor madness, nor the individual, nor the delight of a child, nor the eyes of a fellow human being, nor our sense of the ultimate, in its effort to make sense of our experience and make statements that are consistent and understandable in light of it all."
Keywords: Justice Scalia, Textualism, Democracy, Totalitarianism, Catholic Church, Natural Law, Divine Law, Legislation, Freedom of Conscience, Free Exercise, Common Good
Suggested Citation: Suggested Citation
Brennan, Patrick McKinley, A Catholic Way to Cook a Hamburger? The Catholic Case against McLaw (2016). Villanova Law Review, Forthcoming; Villanova Law/Public Policy Research Paper No. 2016-1025. Available at SSRN: https://ssrn.com/abstract=2798246