The American Pontifex

Soon, we may have to choose a new pontifex maximus.

No, I am not forecasting the demise of our new pontifex, or pontiff, Benedict XVI. God forbid. May he live a hundred years.

I mean the pontifex of the American civil religion, namely, the chief justice of the U.S. Supreme Court.

While I wish Chief Justice William Rehnquist the best in his struggle with thyroid cancer, it seems likely that he will step down before President Bush's term expires. With the consent of the Senate, the president will have to appoint a replacement. The process will be fraught with difficulty, because the Supreme Court has in recent years transcended its role as interpreter of the laws. The court has made itself the ultimate authority whenever matters of faith and ethics come into political play.

Rehnquist is a pontiff in spite of himself. God knows he resisted the role of spiritual arbiter in civil society. His legal reasoning has always emphasized the primacy of elected legislatures, the principle of majority rule and the importance of states’ rights.

Yet it is undeniable that during his tenure as chief justice, the Rehnquist Court has become increasingly sacralized, rewriting the American conscience in a way that no previous court has dared.

The court crossed the Rubicon with Planned Parenthood v. Casey (1992), as Russell Hittinger suggests in his important essay “A Crisis of Legitimacy.” In their joint majority opinion in Casey, Justices O'Connor, Souter and Kennedy did much more than merely uphold Roe v. Wade. Throwing out the moral consensus of civilization over several millennia, the Court declared that “at the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe and of the mystery of human life.”

Essentially, the justices ratified the American tendency toward a “religion of the individual,” and then appointed themselves the priests of this new civil religion. Americans’ commitment to the rule of law, Casey proclaimed, cannot be separated “from their understanding of the Court invested with the authority to … speak before all others for their constitutional ideals.”

If this were taken to its logical conclusion, the Supreme Court would itself become sovereign within the American system. The Casey justices admit this, in so many words: “The root of American governmental power is revealed most clearly in the instance of the power conferred by the Constitution upon the Judiciary of the United States and specifically upon this Court.”

Now, this is alarming. The genius of the American system lies in its refusal to award the ultimate sovereignty to any particular branch or level of government, instead dispersing authority within a limited and mixed government, and reserving the ultimate sovereignty to the people.

To his credit, the chief justice dissented in Casey, and his decision in the 1997 case Washington v. Glucksberg refused to apply the Casey logic to euthanasia. But in Boerne v. Flores that same year, Rehnquist joined the majority decision striking down the Religious Freedom Restoration Act.

The Boerne Court ruled that Congress’ clearly defined power to “enforce” the Fourteenth Amendment “by appropriate legislation” extends only, as Hittinger notes, “to those rights whose scope have been defined by the Supreme Court.”

Although Rehnquist has resisted the pontifical mantle, he is nonetheless partly responsible for its imposition on the chief justice. It is impossible to build a stable jurisprudence based on “majority rule,” something that shifts with every spin of the weathervane.

There are indeed fundamental rights, such as life, liberty and property, which must be protected from the whim of legislators. This was the principle of our revolution. Our Founding Fathers did not appeal to the courts themselves, however, as the protectors of rights, but to the “laws of nature and of nature's God.”

The natural law is embedded in our Constitution. Judicial review allows the courts to overturn laws where they conflict with the natural law as it is expressed through the Constitution. Courts do not have the power, however, to redefine natural law in a way opposed to the consensus of ages, or to invent new rights which are not “deeply rooted in our history and traditions.”

Yet this is what the Supreme Court has done, most recently in the Lawrence v. Texas sodomy case.

Human beings need to appeal to the fundamental natural law, which comes from a divine personal lawgiver. Since Rehnquist (among other justices) has rejected natural law jurisprudence, the Court was compelled to invent a new natural law, over Rehnquist's objections. Its author is not God, but the Court itself.

Fortunately, we still have the power to amend the Constitution. The first order of political business for concerned Christians should be an amendment defining the individual's “right to privacy” in a way consistent with the common good and the laws of nature.

It is not surprising that the American pontifex should be our chief lawyer. Not only was our revolution superintended by lawyers, but the original pontifexes (excuse me, you Latinists out there, I meant pontifices) were also involved in the law. Pontifices — priests in the Roman Republic — judged cases touching on home and family life.

The pope borrows one of his titles from the chief pontifex or pontifex maximus. Our American system, too, draws liberally from the Roman model, so why not go all the way and have our own republican pontiff?

For Catholics, of course, this is out of the question. Other Americans, hopefully, may become alarmed when they recall the most famous Roman pontifex maximus. He was Julius Caesar, the man who overthrew the Republic.

If ours is to remain a government of laws and not men, we must choose justices who will respect the natural law, and not divinize themselves by rewriting it.

Scott McDermott's biography, Charles Carroll of Carrollton: Faithful Revolutionary, is available at