Pope John Paul II, Freedom, and Constitutional Law
Myers, Richard S., Ave Maria Law Review
This is an important conference in the history of the law school. (1) The thought of Pope John Paul II was extremely important in the formation of the Ave Maria School of Law. Dean Bernard Dobranski and other law school leaders were involved in the discussions of Ex Corde Ecclesiae (2) and the nature of Catholic higher education that took place throughout the 1990s. (3) Pope John Paul II's encyclicals in the 1990s, particularly Centesimus Annus, (4) Veritatis Splendor, (5) Evangelium Vitae, (6) and Fides et Ratio, (7) influenced the thinking of those involved in these efforts. (8) Many of the ideas developed at that time came to fruition in the founding documents of Ave Maria School of Law. (9)
One thing that struck me during that time was how these encyclicals seemed to respond directly to developments in the constitutional law of the United States. This is not as surprising as it might at first appear. Particularly in certain areas of American constitutional law (substantive due process is perhaps the best example), the Supreme Court seems to reflect strains of thought prevalent in the broader culture. (10) The Court's opinions engage profound issues such as the nature of freedom, the value of human life, and the relationship between religion and political life. The Pope's encyclicals of this era, which directly engage currents of modern thought, speak almost directly to the same issues.
In this Article, I will briefly describe certain trends in American constitutional law, with a particular focus on the doctrine of substantive due process. These trends reflect seriously misguided approaches. The Court has, to a certain degree, absorbed the worst aspects of modern culture. In certain opinions, the Court has embraced an extreme form of moral autonomy and the privatization of religion. These views, which have not yet completely carried the day in the lower courts, have serious inadequacies, and are ultimately threatening to the individual freedoms they purport to protect. Pope John Paul II's writings offer a helpful alternative; his thought emphasizes the link between freedom and truth, and the need to understand freedom within the limits of the objective moral law. This is a perspective we would do well to consider as we think through these issues in constitutional law and in public policy debates outside the courts.
I. SUBSTANTIVE DUE PROCESS AND A MISGUIDED UNDERSTANDING OF FREEDOM
The modern doctrine of substantive due process is complex, and a full treatment would require several full-length articles. (11) In brief, the Due Process Clause of the Fourteenth Amendment provides that "[n]o state shall ... deprive any person of life, liberty, or property, without due process of law." (12) Although this clause sounds "procedural," the Court has long used the doctrine of substantive due process to "hold unconstitutional state statutes that violate a 'liberty' interest the Court believes is protected by the clause, regardless of the manner in which the deprivation Occurs." (13) This doctrine, "which affords constitutional protection to individual rights claims without a clear textual warrant," has long been controversial. (14) The main disagreement has been about how to define the "fundamental rights" or "liberty interests" that deserve heightened constitutional protection.
A. Two Approaches to Substantive Due Process
In the modern era of substantive due process (since the 1965 decision in Griswold v. Connecticut (15)), the Court has vacillated between a narrow and a broad approach to deciding what constitutes a "fundamental right," typically the key inquiry in such cases. Neither approach is strictly textual. (16) Both frequently pay due homage to Justice Harlan's dissent in Poe v. Ullman. (17) That opinion has assumed near canonical status, given how frequently it is cited in Supreme Court opinions, (18) confirmation hearings for nominees to the Court, (19) and scholarly commentary. …