If They'd Made Me Pope: Restoring the Rule of Law

"Not one jot or tittle"

Having long ago abandoned the blindfold of Lady Justice, the Catholic hierarchy fast approaches the time when only Matt 18:9 remedies will suffice.

Several years ago, I visited a Dominican friend of mine who was being ordained to the transitional diaconate in Washington, D.C.. When I jokingly mentioned that either one of us could be elected pope, he laughed right in my face and said I would be a terrible pope. (He added that so would he.) My friend was right, of course, but it still got me thinking harder: what makes a good pope? What should a pope actually do?

Now we have a new pope, so, on the off chance Pope Leo XIV is browsing De Civ looking for ideas, this ongoing series says what I’d do If They’d Made Me Pope.

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For amen I say to you, until heaven and earth pass away, not one jot or tittle shall pass from the Law, until all is fulfilled. He therefore that shall break one of these least commandments, and shall so teach men, shall be called the least in the kingdom of heaven. But he that shall do and teach, he shall be called great in the kingdom of heaven. For I tell you, that unless your justice abound more than that of the scribes and Pharisees, you shall not enter into the kingdom of heaven.

—Jesus Christ

The Church is in a profound and long-running crisis over the rule of law. There is perhaps no better example of this than the recent conclave. The black-letter law of the conclave demands “rigorous” and perpetual secrecy from all who participate in it. This secrecy does not cover only vote counts, but “all matters in any way related to the election of the Roman Pontiff” (emphasis mine). Every single cardinal elector makes an oath to perpetually maintain this secrecy, hand on the Gospel, before The Last Judgment in the Sistine Chapel, on film, broadcast to the entire world, forever. It is well-known throughout the world that violating the secrecy of the conclave, in any way, carries the penalty of excommunication.¹

It was therefore awfully surprising to read detailed (fascinating) accounts of the papal election in the Wall Street Journal and the New York Times within a week. It was obvious from context that they had cardinals talking to them off the record. In the Journal, +Cupich brazenly violated his oath right there on the record! Many of the faithful were, rightly, scandalized. Many others were, understandably, confused. Had they misunderstood the law? Surely if the cardinals subject to the law of secrecy were freely bleating the details of the conclave to the global press, the law must not have been as tight as they’d believed.

No! The law was exactly as tight as the faithful believed! The cardinals just decided not to follow it! In fact, it’s worse than that: for at least some of these cardinals, it does not seem to have even occurred to them that the law deserved any moral consideration whatsoever. The law didn’t even come up in their moral calculus.

This is rampant. It affects every law in the Church, from the conclave to the abuse of minors to liturgical practice, even down to tiny things like the foot-washing ritual on Holy Thursday. It warps marriage nullity tribunals, it demolishes protections for inferiors against superiors, it feeds schisms (on all sides), it shields obvious lawbreakers from the consequences for their actions. This builds on itself. The faithful, confused and led by the clergy’s obvious contempt for law, extend that contempt everywhere else. How often do you meet an American Catholic who not only refuses to abstain from meat on every Friday of the year (not just during Lent), but who is totally unaware that there is a penance obligation at all? How often do you meet an American Catholic who, seeing the hierarchy’s obvious contempt for ecclesiastical law, concludes that divine laws on (for example) contraception and masturbation are merely optional, too? Innocent but ignorant priests and deacons are victims of this, too, like the priest who saw (licit) Eucharistic intinction by ministers at Pope Francis’s funeral and therefore instituted (illicit) Eucharistic intinction by laypeople in his parish, reasoning that here, as in so many other places, the true law must be what Rome does, not what Rome says.

This must stop. You have the keys to the kingdom, Peter. BIND ON EARTH!

This is the program I propose:

Obey the Law

The pope should follow canon law, liturgical regulations, and other legal acts of the Church. Whenever the pope finds it right and just to deviate from canon law, he should either publish an explicit dispensation, on paper, explaining the deviation (and why it’s limited to himself), or he should abrogate the law. After all, it can’t be that important if the pope isn’t following it!

This comes at virtually no cost to the pope. It is true that, as the Church’s sovereign, the pope is not properly subject to the Church’s code of laws, so he has no legal duty to obey them.² However, as the Church’s all-in-one supreme legislative, executive, and judicial authority, he can just change laws he doesn’t support. Set a good example, first and foremost.

This is not complicated. There is nothing more to say about it.

Yet it may be the biggest change in the twenty-first century papacy I’ve proposed.

Enforce the Law

This sounds obvious, but it somehow isn’t? The pope should ensure that those who are accountable to him follow the law. When they do not, he should apply the penalties of law. Period.

The duty of ordinaries, metropolitans, and primates to not just obey, but enforce, the law within their jurisdictions should be clarified through appropriate legislation. Where necessary (hello, metropolitans!), their jurisdiction should be expanded. Remember that the Third Council of Constantinople issued a posthumous anathema against Pope Honorius,³ not for committing the crime of heresy, but merely for showing undue tolerance toward those who did. This is the standard to which all bishops should hold one another.

After the first few primates are deposed and confined to a monastery for failing to build a culture of obeying the law, the rest will fall in line. Or, if not, whatever, keep deposing them. This is the most appropriate lever the pope has, in his function as Patriarch of the West. It leaves implementation details to the bishops, but holds them accountable for the results. He should not hesitate to use it.

Mercy By the Book

If the pope thinks the penalties of law are not sufficiently merciful in a specific case, he should not waive the law. Instead, he should rewrite the law for all to see. A good law contains within itself both justice and mercy. To waive it is not to privilege mercy over justice (which would be bad enough). To waive a good law is to abandon both justice and mercy. Moreover, waiving the law in only one case, while leaving it binding on others, adds confusion and scandal.

In the American constitutional order, most executives have a pardon power. However, one must remember the theory behind it. Executives have a pardon power because the law, as written, may not cover all cases. Perhaps a city has “Don’t walk on the grass” sign in a park, backed by an ordinance. Then, one day, someone collapses in the sun and a passing jogger races to render aid, walking on the grass in the process. Due to ironclad municipal policies, which were drawn up in response to recent vandalism, the jogger is charged with a misdemeanor. At a bench trial, the judge has no choice but to convict.⁴ This is an outcome that nobody involved in the law actually intended or wanted, but which nobody could avoid.⁵ They would have written an exception into the law if they’d thought of it, but they didn’t. The jogger should be pardoned by the mayor, ideally before the prosecution even begins.

Because there will always be unintended, unjust corner cases like this in any code of written laws, and because, in America, unjust corner cases cannot be fixed without enormous difficulty (convening the legislature, drafting new legislation, passing new legislation), Americans gave many of their executives the power to issue pardons. The pardon was intended as a quick cure for a badly written law.⁶

However, none of this applies to the pope! He doesn’t have to convene the legislature! He can just rewrite the bad law and apply it retroactively!

Specifically: if anyone even suggests that I deviate one jot or tittle from the law as an act of “mercy” toward someone accused in the sex abuse scandal, because “let him who is without sin cast the first stone,” I will throw an entire millstone at that person. I may have to have a papal catapult or something special-built for the purpose. (Indeed, since I wrote this passage, Archbishop Guy de Kermiel of Toulouse appointed a priest who was convicted of raping a teen boy in 2006 to the prestigious office of diocesan chancellor. The bishop said that he acted out of “mercy.” So +Kermiel has just won a free ride on my papal catapult.)

Of course, God and the secular State are both free to make exceptions to the law based on mercy. However, as the Long Lent of 2002 enters its twenty-fourth year, the pope can no longer afford anything less than swift and awesome judgment. He should act with love, but a searing love.

Ferret Out Law-Breaking

I’m not 100% sold on this one, but I still think it’s worth considering.

Although I think any new pope should drastically shrink the Curia, I’ll make one exception: the Church should have an FBI for canonical crime. Call it the Vatican Dicastery for the Investigation of Crime (VDIC) and maybe give them cool vests. Task them with assisting in the investigation and prosecution of large-scale Church crimes that cross provincial borders.

The VDIC’s crimes-against-children unit can be run by Jeff Anderson, if he’ll take the job. Anderson isn’t Catholic at all. He’s extremely hostile to the Catholic Church. This is because he’s been investigating and suing abuser priests and their hierarchical enablers for decades, and the experience of being in the trenches of that would put anybody off Catholicism. Give Jeff a budget, total access to the Church, and the power of papal obedience behind him, and just see what he can uncover.

Again, I’m not quite sure this is right. I’m not sure “VDIC” is an appropriate function for Rome to serve, and, even if it is, I’m not sure a hostile non-Catholic is the right man to run even one small division of it. However, these are the kinds of ideas we need to be bringing to the table. We are way past the point where Vos Estis II: This Time, We Really Mean It, We’re Really Going to Take Child Abuse Seriously is going to do the trick. The rule-of-law crisis is enormous, the child abuse is only one facet of it, and the pope should be thinking big about the urgent, drastic action needed to curtail it.

Transparency

I don’t think the Church needs a Freedom of Information Act, allowing lay people to force the (clerical) government to disclose (most) documents on demand. That’s not a terrible idea, but transparency actually has big costs, and you don’t want to go overboard on it.

On the other hand, you don’t want to go underboard on transparency, either. The Church launched a “thorough investigation” into the depredations of the abusive Cardinal Theodore McCarrick. The results were never published. There can be no doubt that the results would be devastating for the American and global clergy, possibly including the last pope.

We know this because we now know that McCarrick was one of those “everybody knew, but everybody kept quiet” situations. Rod Dreher found out about McCarrick in the early oughts and had been trying to get someone on the record about it for decades, to no effect. Everyone he talked to was either too scared, or too “faithful,” scare quotes very much intended, to tell the truth about “Uncle Ted.”

McCarrick had a dense patronage network throughout the North American Church, consisting of bishops he had helped and who owed him favors. Who owed him favors? What did they know? When did they know it? The Vatican has a pretty good idea (unless they were lying about conducting a thorough investigation, which would also be good to know). Publish the whole thing on the website.

Pope Benedict had an investigative team compile a thorough dossier on curial corruption known as The Box. Scan The Box and publish it on the homepage of Vatican.va. If that seems somehow irresponsible, at least hand The Box over to responsible journalists and let them comb through it for newsworthy information, trusting their journalistic ethics. I hear The Pillar wouldn’t mind a copy of The Box, and neither would the National Catholic Register, and that’s just American papers.

Oh, and, hey, while we’re at it, my old Archbishop, +John Nienstedt, was accused of cruising for gay sex and hitting on priests. Most of us scoffed at this rumor as an obvious smear. After all, +Nienstedt led the local Church through the cultural battle over the definition of marriage, and same-sex marriage supporters always accused their opponents of being closeted. However, a 2014 archdiocesan investigation into Nienstedt’s past revealed something that led Auxiliary Bishops Piché and Cozzens to conclude that Nienstedt should immediately resign. They immediately flew to Washington to confer with papal nuncio Carlo Viganò… who immediately quashed the investigation. The Archdioceses of Saint Paul and Minneapolis should publish that one, too.

Make this a canonical norm for all investigations. They can go through a redaction stage, but, if the Vatican (or a diocese) feels compelled to publicly announce an investigation, then the investigation is important enough that its results need to be published. After all, we in the pews are the ones who paid for those investigations. That’s our Peter’s Pence; it’s our Annual Archdiocesan Appeal money; it should be our report. “Sunshine is the best disinfectant” is a terrible cliché, but the Catholic Church has become a worldwide object lesson in why it became a terrible cliché.

Dear The Vatican: Whatever you’re covering up, it cannot possibly be worse than what I assume you’re covering up just based on your pattern of covering things up over the past fifty years! Transparency will hurt like the dickens at first, but it’s really one of the Church’s only hopes for restoring its credibility to the pews and to the world!

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Next time, I’ll get into specific laws I would change to address specific problems facing the Church. However, in a time of rampant antinomianism, there’s no point in passing laws if (like so many laws today) they aren’t going to be respected or enforced, so today’s foundation was necessary.

But first, we’ll have a Worthy Reads, and maybe, if I am a fast writer, perhaps even a response to the comments on Replacing the Seventeenth Amendment?

1. As we discussed in a recent article, this is not, strictly speaking, accurate. It is still a mortal sin for a cardinal to violate the oath, but Universi Domenici Gregis, whether by oversight or deliberate choice, attaches the penalty of excommunication to non-cardinals only.

2. Of course, the Pope is obligated to obey divine law at all times, same as everybody else. The pope can derogate from a day of fasting or move the date of Easter, but he can’t get drunk and hire prostitutes.

Well, he can, it’s been tried, but he’ll go to Hell.

The pope’s special authority allows him to disregard only human ecclesiastical laws, which do bind other Catholics in conscience.

3. For at least two reasons (lack of jurisdiction and lack of power in the penalty), a posthumous anathema has no effect on the immortal soul of the one anathematized. Moreover, since Pope Honorius never actually taught the doctrine in question, his condemnation by the Council does not pose any challenge to the teaching of papal infallibility. Nevertheless, it is a powerful symbolic action, especially when applied to an ex-pope.

The condemnation of Pope Honorius is also a good antidote to what I call “Rex Mottram ultramontanism”: the belief that whatever the pope says or does, at least in his official capacity, is sure to be considered wise and true, if he’s the pope. Both sedevacantists and certain defenders of Pope Francis would do well to bear this in mind.

4. A jury would not have to convict, because the jury has the power of jury nullification. However, jury nullification is such a complex topic, so starkly disfavored in current American law, that I won’t get into it here.

5. A sidebar for a very specific audience: some will say that the judge does not have to convict our jogger for stepping on the grass. One of the people who holds that view is no less than St. Thomas Aquinas.

Aquinas’s view is that the law, “Don’t walk on the grass,” was obviously not intended to operate in an emergency situation like the one just mentioned, and therefore it doesn’t. (Aquinas maintains that “the intent of the lawgiver has the force of law,” ST II-I Q90 A1 R3, loosely re-translated.) Moreover, for Aquinas, this law cannot operate in an emergency situation like this, because it contradicts higher natural-law principles about aiding one’s fellow man in time of need, which pre-empt a mere city ordinance. In Aquinas’s view, the judge should acquit both because the law was not intended to prevent walking on the grass and because it is contradicted by a higher unwritten law in the human heart.

This view is not shared by originalist-textualists like me, who reject the purposivist reading of law that Aquinas takes for granted. As Antonin Scalia argues in his book (with Brian Garner), Reading Law, the level of abstraction at which purposivism operates effectively frees a judge from having to follow the law at all. He can “climb the ladder of generality[] to find another purpose [for a law he doesn’t agree with]—often a highly abstract one—enabling him to give crabbed interpretations to limiting provisions and unrealistically expansive interpretations to narrow provisions”:

Consider a simplified illustration of purposivist interpretation: A city ordinance reads, “It is a class A misdemeanor for the driver of a vehicle not to come to a complete stop at a stop sign.” Someone gets stopped, arrested, and charged. The proof is incontrovertible. A judge who wants to get around the language might divine the purpose as being to promote public safety and note that there are no significant public-safety issues if it is 3:00 a.m. and no pedestrians or other drivers are anywhere in the vicinity. This judge might therefore find an equitable exception to the statute as “promoting its genuine purposes” and as “being true to its spirit.”

What purposivism disregards is that some statutes pursue their broadest purpose (public safety, in the previous example) in a prophylactic fashion (always stop at a stop sign because we don’t trust your judgment about whether public safety requires it). And other statutes depart from their broadest purpose in the other direction. A ban on vehicles in a public park might be aimed at protecting park visitors from dangerous or fast-moving objects, for example, but ambulances might be excepted. Otherwise, it would pursue that broadest goal only at the expense of harming other values that the legislature deems important.

After all, no statute—and no private instrument, for that matter—pursues its “broad purpose” at all costs. The statute might not have won majority approval without the provisions that limit its application or that simply stop short of what it might have done. Those limiting provisions (or the absence of more expansive provisions) are no less a reflection of the genuine “purpose” of the statute than the operative provisions, and it is not the court’s function to alter the legislative compromise.

I regret that copyright law prevents me from quoting this entire section of the book. If you acquire a copy, the section is headed “Textualism and Its Challengers.”

Natural law theories, for their part, are all well and good—Scalia himself was a Catholic—but there is no widely agreed-upon framework in our society for what the natural law actually is, and neither Congress nor the Constitution has specifically authorized judges to rule on that basis. What Congress and the Constitution have done is authorized judges to interpret laws according to their texts, and nothing else.

This led Justice Scalia to occasionally rule that extremely important natural rights, in which he himself fervently believed, were not protected by the Constitution. For example, in his Troxel v. Granville dissent, Scalia ruled against the right of parents to direct the upbringing of their children—even though he said, in that same dissenting opinion, that this right was “among the unalienable Rights with which the Declaration of Independence proclaims all men… are endowed by their Creator.” (internal quote marks omitted) I think he’s right, on both scores.

Therefore, in the hypothetical scenario I’ve conjured up, the judge must convict the jogger. The law is an ass, and it’s the judge’s sworn duty to obey it anyway. That’s why we have the pardon power.

Of course, the law could give judges greater discretion. Moreover, the law could define the natural law and incorporate it into the body of law judges are bound to uphold. Arguably, the Catholic Church’s ecclesial law does just that. If the local constitution does charge judges with obeying the natural law, then, obviously, judges are obligated to carry out that command to the best of their abilities. However, in the American system, that is not our current law. American judges are bound to the text.

Incidentally, one side bonus of making me pope is that Adrian Vermeuele would eventually read this footnote. He would faint dead away, being revived by only the strongest smelling salts. Then he would go home, and, hopefully, rethink his life. This would be a delightful outcome for everyone in the West, not just the Catholic Church.

6. It is not used that way today, of course. Most of these decisions have ended up, not in the hands of executives, as the Constitution expects, nor in the hands of juries through jury nullification, as the Founders largely expected, but in the hands of local prosecutors, an office that played a very different role at the time. The presidential pardon has become somewhat vestigial, and there is good reason to be skeptical of it.