Eligibility questions about Cruz and Rubio

This morning, Senator Ted Cruz (R-Tex.) announced that he was running for President; a similar announcement from Senator Marco Rubio (R-Fla.) is expected soon. 1 During the time in which each man flirted with such a bid, questions of their eligibility to that office were raised. Since 2008, the natural-born citizen requirement of Article II has received renewed attention 2; people forget that “Birtherism” came into being in order to challenge John McCain’s quest for the GOP nomination: My co-blogger at Stubborn Facts and I debunked that theory in a pair of posts in February 2008. 3 Phillip Berg, a Hillary Clinton supporter, then took the fateful step of applying the notion to Barack Obama, and thus was born a cottage industry of conspiracy. 4 For those who have drunk the “birther” kool-aid, no argument will suffice, but for the rest of us, it is worth a brief analysis. Surprisingly, while Rubio is safe, Cruz presents a more difficult question.


Article II section 1 of the Constitution of the United States requires that the President be a “natural-born” citizen. As an original matter, Constitutional text draws its content from the original meaning of its language. 5 In particular, when the Constitution uses the language of the Law of England—”natural-born citizen” is, mutatis mutandis, the cognate of “natural-born subject” under English law—it presumptively incorporates that law and the relevant precepts thereof. 6 And when we want to know the content of that law as it would have been understood by the founding generation as the legal backdrop to their work, we turn first and foremost to the Commentaries of William Blackstone. 7 These bear extended quotation on this point:

THE first and most obvious division of the people is into aliens and natural-born subjects. Natural-born subjects are such as are born within the dominions of the crown of England, that is, within … the allegiance of the king; and aliens, such as are born out of it. Allegiance is the tie, or ligamen, which binds the subject to the king, in return for that protection which the king affords the subject. The thing itself, or substantial part of it, is founded in reason and the nature of government; the name and the form are derived to us from our Gothic ancestors. …

. . . .

WHEN I say that an alien is one who is born out of the king’s dominions, or allegiance, this also must be understood with some restrictions. The common law indeed stood absolutely so; with only a very few exceptions: so that a particular act of parliament became necessary after the restoration, 29 Car. II. c. 6., for the naturalization of children of his majesty’s English subjects, born in foreign countries during the late troubles. And this maxim of the law proceeded upon a general principle, that every man owes natural allegiance where he is born, and cannot owe two such allegiances, or serve two masters, at once. Yet the children of the king’s ambassadors born abroad were always held to be natural subjects, 7 Rep. 18: for as the father, though in a foreign country, owes not even a local allegiance to the prince to whom he is sent; so, with regard to the son also, he was held (by a kind of post-liminium) to be born under the king of England’s allegiance, represented by his father, the ambassador. To encourage also foreign commerce, it was enacted by statute, [the Status of Children Born Abroad Act, 1350,] 25 Edw. III. st. 2., that all children born abroad, provided both their parents were at the time of the birth in allegiance to the king, and the mother had passed the seas by her husband’s consent, might inherit as if born in England: and accordingly it hath been so adjudged in behalf of merchants. Cro. Car. 601. Mar. 91. Jenk. Cent. 3. But by several more modern statutes, [the Foreign Protestants Naturalization Act, 1708,] 7 Ann. c. 5. and [the British Nationality Act, 1730,] 4 Geo. II. c. 21, these restrictions are still farther taken off: so that all children, born out of the king’s ligeance, whose fathers were natural-born subjects, are now natural-born subjects themselves, to all intents and purposes, without any exception; unless their said fathers were attainted, or banished beyond sea, for high treason; or were then in the service of a prince at enmity with Great Britain.

THE children of aliens, born here in England, are, generally speaking, natural-born subjects, and entitled to all the privileges of such. In which the constitution of France differs from ours; for there, by their jus albinatus, if a child be born of foreign parents, it is an alien.

A DENIZEN is an alien born, but who has obtained ex donatione regis letters patent to make him an English subject: a high and incommunicable branch of the royal prerogative. A denizen is in a kind of middle state between an alien, and natural-born subject, and partakes of both of them. …

NATURALIZATION cannot be performed but by act of parliament: for by this an alien is put in exactly the fame state as if he had been born in the king’s ligeance; except only that he is incapable, as well as a denizen, of being a member of the privy council, or parliament, etc. 12 Wm. III. c. 2. No bill for naturalization can be received in either house of parliament, without such disabling clause in it. 1 Geo. I c. 4. Neither can any person be naturalized or restored in blood, unless he hath received the sacrament of the Lord’s supper within one month before the bringing in of the bill; and unless the also takes the oaths of allegiance and supremacy in the presence of the parliament. 7 Jac. I. c. 2. 8

The first and most obvious point to take from this is that a natural-born subject is distinct from the “artificial” subject, i.e. a denizenized or naturalized subject. 9 Another obvious point is that it was not felt in any way inappropriate that the political rights of the artificial subject be limited. 10 Thus, we should not be surprised to see Article II expressly distinguish between “natural-born citizen[s]” and “citizen[s]” simpliciter, and to withhold a right from all but a grandfathered subset of the latter.

At the time of the founding, English law on who was a natural-born subject contained various strands. The common law, strictly-understood, 11 that is, judge-made law, seems to have generally required both of the elements that Pat and I discussed in our McCain posts: “There are two Incidents regularly that are necessary to make a subject born; First, that his parents, at the time of his birth, be under the actual obedience of the King; secondly, that the place of his birth be within the King’s dominions.” 12 But the child of an alien in the king’s realm was ordinarily held to be a natural-born subject, which tilts more toward ius solis, and the child of an Englishman is a natural-born subject even if he is born outside of the king’s realm so long as his parents were sent there by the king, which tilts more toward ius sanguinis. Meanwhile, statutory law was tilting decisively toward ius sanguinis: The child of an Englishman in good standing was accounted an Englishman. (Its drift in the eighteenth century was doubtless liberal, but its substance was ancient.) Blackstone appears to frame the organizing concept as a practical one of allegiance. 13 

These are the materials that must govern decisions on this point. There is no precedent to speak of: Birthers are apt to invoke two cases, Minor v. Happersett and United States v. Wong Kim Ark, but they do so carelessly. While both cases contain dicta about the natural-born citizen clause, neither has an on-point holding. Minor holds that suffrage is not a “privilege” of citizens of the United States for purposes of section one of the Fourteenth Amendment; in dicta, the court noted that “[t]he Constitution does not, in words, say who shall be natural-born citizens” for purposes of the eligibility clause, and that “[r]esort must be had elsewhere to ascertain that,” specifically to English law, and recited essentially what I have quoted from Blackstone. 14 And Wong Kim Ark holds (as is so familiar today as to seem obvious) that the children of aliens born on American soil do obtain citizenship by operation of the Fourteenth Amendment; it, too, has some dicta affirming the place of English law: The clause “must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the Constitution. The language of the Constitution, as has been well said, could not be understood without reference to the common law.” 15

With no binding precedent, and no long-standing tradition to give content to the clause, 16 we are left with the original meaning. And because the adjective “natural-born” had accumulated meaning as a term-of-art, we do not parse it as natural language, but instead give it the meaning that it would have been understood to bear. 17 A “natural-born” citizen means in the context of Article II,  mutatis mutandis, that which English law apprehended to be a “natural-born” subject. Thus, as I argued in 2008, McCain was a natural-born citizen because he was born on American sovereign territory (as the Panama Canal Zone was, at the time), and even if he wasn’t, as Pat argued, English law at the time of the founding recognized that foreign-born children of Englishmen sent abroad by the king were considered natural-born subjects, and this rule was sufficiently embedded by 1788 that children of soldiers and diplomats would have been thought of as natural-born citizens. Either of these foundations alone supported McCain’s natural-born citizenship; both together made it a slam-dunk.


To their credit, the birthers sought to be consistently wrong, and went after Marco Rubio when he became flavor of the month: Rubio was born in Florida, but to non-citizen parents. 18 Soon thereafter, he was succeeded as flavor of the month by Cruz, remembered fondly by many of us as an advocate at the Supreme Court. 19 Cruz was born in Canada to an American mother and non-American father. 20 No one disputes that each of these men are American citizens; the charge is that they are not natural-born citizens as Article II comprehends that term.

Marco Rubio was born in 1971 in Miami, Florida, to Mario Rubio and Oria Garcia, Cuban citizens who immigrated to the United States in 1956 and who would become naturalized Americans in 1975. 21 They were not ambassadors, or employees of the Cuban government in any capacity. 22 His case is therefore straightforward. From Blackstone, we know that to the Framers’ understanding, the “children of aliens, born … in England, [we]re, generally speaking, natural-born subjects, and entitled to all the privileges of such,” and so the original understanding of Article II would have been that “children of aliens, born here in [America], are, generally speaking, natural-born [citizens].” Rubio is therefore eligible to be President. 23

Ted Cruz might not be. He was born in 1970 in Calgary, Canada, to Rafael and Eleanor Cruz. Eleanor was an America citizen; Rafael, a Cuban citizen who would become a naturalized American in 2005. 24 They were in Calgary working for an oil company. 25 Certainly, Cruz became a naturalized citizen at birth, 26 but that is not the test; as we have seen, in the law of England at the time of the framing, “naturalized” existed in contrast to “natural-born.” Had Cruz been born south of the border, there is no doubt that he would be a natural-born citizen. But Canada is not part of the United States, the Cruzes were not there on the errand of the United States, and as a result, there is a serious question of Cruz’s eligiblity.

If we try to apply Blackstone’s comments to Cruz, problems quickly mount. Had Cruz’s father been the American citizen, and his mother the non-citizen, he would plainly have been a natural-born citizen, but the English statutes that extended that right issue are framed in stubbornly-androcentric terms: Children born on foreign soil “whose fathers were natural-born subjects, are … natural-born subjects themselves.” The foreign-born child of a British man was a natural-born subject, but what of the foreign-born child of an British woman married to an alien? What would the founders have understood English law to say of that child’s citizenship? And what are we to infer from the first Immigration Act, 27 which provided that “the children of citizens of the United States, that may be born beyond sea or out of the limits of the United States, shall be considered as natural born citizens”? Does the first clause abolish the patrilineal focus of the English statutes? Does the second restate the understanding that such children were natural-born citizens, or does it imply that they were not (insofar as statutory text is not to be read as a nullity)? Does “as” mean “as if they were” (as it clearly does in the preceding clause of the statute) or “to be”? The answers to these questions are, at best, not obvious.


A useful article in the Harvard Law Review by former solicitors-general Neil Katyal and Paul Clement (another rockstar of the conservative legal movement, and one with whom Cruz crossed swords at oral argument in Medellin v. Texas, incidentally) attempts to give answers to some of this. 28 They insist, as I have said above, that the test is what the term “natural-born” meant under English law, but go astray in fixating on the notion that anyone who is a citizen from birth meets this test. That’s problematic both as a matter of English law and Constitutional law. 

As to the former: As we have seen above, at common-law, the natural-born subject was one born within the king’s realm, but statutes had afforded natural-born status to children of Englishmen born beyond the realm if they were there on the king’s errand—ambassadors, for example. Statutes had long extended that: All children born abroad might be counted as natural-born “provided both their parents were at the time of the birth in allegiance to the king, and the mother had passed the seas by her husband’s consent,” we heard Blackstone say, and by the time of the framing, as a general matter, all children born abroad might be counted as natural-born provided their “fathers were natural-born subjects….” But Cruz’s situation does not fit squarely within that, because it was his mother who was the natural-born citizen; his father was not even a naturalized citizen by that time. In these politically correct days, we want to dismiss the question as sexist, but that’s anachronistic; how would the Founders have understood English law to deal with gender distinctions of that kind? That is the question here. I don’t know the answer, and if Katyal & Clement do, they don’t tell.

As to the second, I want to suggest two problems with Katyal & Clement’s position. In some circumstances, Congress has provided that certain persons may be made citizens in adulthood; those people are naturalized citizens. In other circumstances, Congress has provided that certain other persons become citizens at birth; those people, say Katyal & Clement, are not naturalized citizens, but natural-born. Only those who at some “later time” (how much later?) must go through naturalization are not natural-born. The first problem: What about people who, for example, become citizens by virtue of 8 U.S.C. § 1401(f), which makes citizens of persons “found in” the United States sine parentibus if they are younger than five? Does section 1401(f) make naturalized citizens or natural-born citizens? What if the child is four years old? What if four days? Can the answer be different depending on the age of the child? It seems that it would have to be, according to  Katyal & Clement, but why? And where is the cutoff? And the second problem: If Congress can make natural-born citizens, it has the power to delete the natural-born requirement. Katyal & Clement’s position is that by making certain people citizens from birth, it has made them not naturalized citizens but natural-born citizens; but suppose—and the answer can’t be that the hypothetical is too extreme—that Congress passed a law stating that any person born anywhere are U.S. Citizens from birth. Is anyone in the world then potentially eligible to be President? If you adhere to Katyal & Clement’s theory, you must say yes. Or perhaps a more plausible hypothetical: Imagine that there were to be a particularly war-torn small country, Elbonia, and Congress passed a law making all persons born in Elbonia became U.S. Citizens from birth, hoping to rescue as much of the population as possible. Are all Elbonians thereby made potentially eligible to be President? If you adhere to Katyal & Clement’s theory, you must say yes.

* * *

The reader may be anxious to know how these vexing and intricate questions may be resolved, and will doubtless be frustrated to learn that I do not intend to do so here. For now, it will suffice to say that while Rubio is eligible, all that we can say with certainty about Cruz is that it’s uncertain.

To be clear, my position is not that Cruz is ineligible. Katyal & Clement go some way toward suggesting that he is eligible, their article is pretty good, and it’s certainly using the right materials. But I do think that the question is more difficult than it is being given credit for, and I must admit to being troubled if (as appears to be the case in many quarters) our first reaction to a potential problem is to associate it with some knuckle-dragging simpletons who once pressed similar concerns in a different context. Even a broken clock is right twice every day, and would be quite pathetic if our sole reason for refusing to engage seriously with a serious problem is that eight years ago, a few unserious people made a similar argument about someone else.

So: In my view, Prof. Sarah Duggin was right to be cautious in an NPR interview cited above. It’s not an open-and-shut case. I suppose that a strong purposivist such as Justice Breyer might say that because the purpose of the clause was to screw Alexander Hamilton, any candidate who isn’t Hamilton is in the clear. 29 But for the rest of us, for those of us benighted FedSoc types who care about constitutional text and originalism, a group that certainly includes brother Cruz, I had thought, 30 there is a serious question hanging over Cruz’s candidacy. And so I want to suggest that the question becomes this: Is Cruz really so good a candidate that we want to license another four or eight years of birtherism? Is he really so good a candidate that we are willing to risk the precipitation by the Democratic party of a constitutional crisis? (Do not suppose for a moment that they are not sufficiently brazen.) These doubts may, alas, to end Cruz’s candidacy before it begins.




  1. Nick Corasaniti & Patrick Healy, Ted Cruz Becomes First Major Candidate to Announce Presidential Bid for 2016, The New York Times, March 23, 2015, http://www.nytimes.com/2015/03/24/us/politics/ted-cruz-2016-presidential-race.html?_r=0 (last visited March 23, 2015. As always, I claim “proprietor’s privilege” to post on matters beyond our usual scope.
  2. To the point, in fact, where one of NPR’s first reactions to Cruz’s announcement was to raise the eligibility question. See Robert Siegel, Canadian-Born Cruz Faces Potential Hurdle To Presidential Aspirations, All Things Considered, March 23, 2015, http://www.npr.org/2015/03/23/394906486/canadian-born-cruz-faces-potential-hurdle-to-presidential-aspirations.
  3. See Simon Dodd, McCain’s Eligibility, Stubborn Facts, Feb. 16, 2008, http://stubbornfacts.us/politics/2008_election/mccains_eligibility; Pat HMV, On McCain’s Birth and Eligibility to be President, Stubborn Facts, Feb. 28, 2008, http://stubbornfacts.us/politics/2008_election/on_mccains_birth_and_eligibility_to_be_president.
  4. See, e.g., Chris Danielson, The Color of Politics 172 (2013); cf. Dodd, Establishing eligibility, Stubborn Facts, Jan. 26, 2011, http://stubbornfacts.us/politics/2012_election/establishing_eligibility (collecting cases).
  5. See District of Columbia v. Heller, 554 U.S. 570, 576-77 (2008); Dodd, The limits of the Recess Appointment Power, part III, Stubborn Facts, April 26, 2010, http://stubbornfacts.us/law/limits_recess_appointment_powercf. Coleman v. Miller, 307 U.S. 433, 460-1 (opinion of Frankfurter, J.).
  6. See Wilson v. Arkansas, 514 U.S. 927, 931 (1995); Dodd, Eligibility, redux, n.1, Stubborn Facts, May 2, 2008, http://www.stubbornfacts.us/politics/serranos_eligibility; cf. Crawford v. Washington, 541 U.S. 36, 43 (2004); Kyllo v. United States, 533 U.S. 27, 31-32 (2001); Murray’s Lessee v. Hoboken Land & Improvement Co., 59 U.S. 272, 276-77 (1856); Dodd, In re Firearms debate, 3 MPA 23, 31 n.2 (2013).
  7. See Washington v. Glucksberg, 521 U.S. 702, 712 (1997); United States v. Wood, 299 U.S. 123, 138 (1936); Schick v. United States, 195 U.S. 65, 69 (1904); accord Rogers v. Tennessee, 532 U.S. 451, 477 (2001) (Scalia, J., dissenting); Neder v. United States, 527 U.S. 1, 30-31 (1999) (Scalia, J., concurring). We habitually refer to what was understood “at common-law,” but truth be told, this is usually a loose synonym for “settled English law”; the technical distinction between statute and common law is not the object in view. Cf. Thomas Wood, An Institute of the Laws of England 10-11 (1754).
  8. 1 William Blackstone, Commentaries on the Law of England 354, 361-62 (1765) (emphases added and some citations omitted).
  9. Cf. Wood, supra, at 23.
  10. Blackstone cites the Act of Settlement 1700, 12 Wm. III. c. 2 § 3: “[N]o person born out of the kingdoms of England, Scotland or Ireland or the dominions thereunto belonging, although he be naturalised or made a denizen (except such as are born of English parents), shall be capable to be of the privy council or a member of either House or Parliament or to enjoy any office or place of trust either civil or military or to have any grant of lands, tenements or hereditaments from the Crown to himself or to any other or others in trust for him.”
  11. Compare, e.g., entry Common law in Giles Jacob, A new law-dictionary containing the interpretation and definition of words and terms used in the law etc (1729) (“the Law of this Kingdom, simply, without any other Laws; for such Laws as were generally holden before any Statute was enacted in Parliament to alter them”), with entry Statute, in ibid.
  12. Entry Alien, in ibid.
  13. Cf. United States v. Wong Kim Ark, 169 U.S. 649, 655 ff. (1898)
  14. Minor v. Happersett, 88 U.S. 162, 167-68 (1875).
  15. Wong Kim Ark, supra, 169 U.S. at 654-55 (citations deleted).
  16. Cf. Marsh v. Chambers, 463 U.S. 783,786-87 (1983); Rutan v. Republican Party of Illinois, 497 U.S. 62, 95 (1990) (Scalia, J., dissenting).
  17. “The touchstone of Constitutional interpretation ‘is the original public meaning that the text’s words and phrases would have had, in context, to an objective, informed reader and speaker of the English language within the relevant political community, at the time the Constitution was written and adopted.'” The Limits of the Recess Appointment Power, supra, part III.A.1 (quoting Michael Stokes Paulsen, The War Power, 33 Harv. J. of L. & P.P. 114, 116 n.5 (2010)); see generally ibid., n.5.
  18. See, e.g., Javier Manjarres, Is Rubio Eligible to be President, Breitbart, April 22, 2013, http://www.breitbart.com/InstaBlog/2013/04/22/Is-Rubio-Eligible-to-be-President-of-the-U-S .
  19. See http://www.oyez.org/advocates/c/r/r_ted_cruz. I rather like him; like Chris Christy, he is a brawler, and one should not wish to see him as a model for the next generation of politicians, but as an exception he has a certain charm.
  20. See David Graham, Yes, Ted Cruz Can Be Born in Canada and Still Become President of the U.S., The Atlantic, May 1, 2013, http://www.theatlantic.com/politics/archive/2013/05/yes-ted-cruz-can-be-born-in-canada-and-still-become-president-of-the-us/275469/ ; Aaron Blake, Cruz will renounce Canadian citizenship, Post Politics, Aug. 19, 2013, http://www.washingtonpost.com/blogs/post-politics/wp/2013/08/19/cruz-will-renounce-canadian-citizenship .
  21. See Wikipedia, https://en.wikipedia.org/wiki/Marco_Rubio; Manuel Roig-Franzia, The Rise of Marco Rubio 24 ff. (2012).
  22. See id.; Becky Bowers, Sen. Marco Rubio said his parents ‘came to America following Fidel Castro’s takeover’ of Cuba, Politifact, Oct. 21, 2011, http://www.politifact.com/florida/statements/2011/oct/21/marco-rubio/sen-marco-rubio-said-his-parents-came-america-foll.
  23. The contrary claim that he ineligible insists that a child of resident aliens is not natural-born, perhaps because overreading dicta in Minor. See Minor, supra, at 167-68 (“it was never doubted [at common-law] that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives or natural-born citizens…. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first”). It suffices to say that whatever the merits of this as a statement of fact, the authority on which the Framers relied, Blackstone, was not among the doubters, as we have seen.
  24. See Ted Cruz, Wikipedia, http://en.wikipedia.org/wiki/Ted_Cruz#Early_life (visited Aug. 20, 2013).
  25. Robert Costa, The Rise of Rafael Cruz, National Review, http://www.nationalreview.com/article/356934/rise-rafael-cruz-robert-costa (“Cruz [Sr.] decided to move to New Orleans to take a new job, which is where he met his second wife, Eleanor Darragh, a computer programmer from Delaware, who was also working for an oil company. They married, moved to Calgary, Alberta, and in late 1970 had their first and only child, Rafael Edward Cruz. They weren’t in Canada long, choosing to move to Houston, where they continued to work for oil companies”); Kate Zernike, A Test for the Tea Party in Texas Senate Race, Nov. 17, 2011, http://www.nytimes.com/2011/11/18/us/politics/ted-cruz-is-a-test-for-the-tea-party-in-texas-race.html?_r=2&
  26. See 8 U.S.C. § 1401(e).
  27. 1 Stat. 103 (1790).
  28. See Katyal & Clement, On the Meaning of “Natural Born Citizen,” 128 Harv. L. Rev. F. 161 (2015), available at http://harvardlawreview.org/2015/03/on-the-meaning-of-natural-born-citizen.
  29. But see Garrett Eps, American Epic 40-41 (2013) (noting that this enduring myth of American politics is dubious at best).
  30. See http://www.fed-soc.org/experts/detail/r-ted-cruz.

Re the joint editorial on the death penalty

Like Professor Garnett, I am skeptical of the “joint editorial” of various Catholic publications that purports to call for an end to the death penalty. 1 The authors are not coy about the context that prompts their comments: Later this term, the Supreme Court will hear Glossip v. Gross, in which recent lethal-injection protocols are challenged. 2 I dissent because it is abundantly clear, given this context, that the Catholic publications are not calling for abolition of death penalty; they are calling for the Supreme Court to strike it down in an act of illegitimate judicial activism.

I should underscore that I accept Evangelium vitae and the subsequent amendment to the Catechism confining the death penalty to cases where the community cannot otherwise be protected. 3 I have recently circulated a petition to commute a death sentence and, in another place, suggested that a person who publicly advocates the indiscriminate use of the death penalty should be dismissed from lay ministerial roles in parishes, just as and to no less extent than those who dissent on any other point of the Church’s teaching. I concede that the application of this standard admits of legitimate diversity, 4 but I do not doubt the principle. 

Nor do I have the slightest doubt that public acts and public officials are bound by those teachings. 5 Qua legislator, I might well vote for a law abolishing the death penalty; qua trial judge, I would feel obliged to resign if required by law to impose a mandatory death sentence (happily, a result precluded by Woodson v. North Carolina); qua governor with discretionary clemency authority, I would feel obliged to exercise that authority to (at a minimum) commute all capital sentences for which commutation was requested. (Qua juror, the situation is complex.) The precise contours of how this might apply are open to question, but I do not doubt the principle.

Nevertheless, I dissent, at least in part, from the joint editorial. Its call is not for the abolition of the death penalty, which any state may do at any time by statute, but for the Supreme Court to illegitimately declare the death penalty unconstitutional—an entirely different matter. The justices are not called upon in this or any other case to decide the wisdom or morality of the death penalty or any particular means for its execution, but rather its legality. The original meaning of the Constitution certainly does not exclude the death penalty. (Nor, by the way, does the teaching of the Church.) Nor, even if we accept the doctrinal developments of the twentieth century, do the touchstones of proportionality and the “evolving standards of decency” (the phrase of Trop v. Dulles) of American society: There is scant evidence of a durable consensus in American society that the death penalty generally or lethal injection particularly is cruel and unusual. Moreover, such evidence as there is must be taken with a grain of salt because it has been manipulated deliberately: Results are likely to be skewed by recent “botched” executions that were engineered by anti-deathpenalty campaigners who worked to undermine the hitherto-stable three-drug protocol. By making it impossible to obtain the necessary drugs, they forced state officials (often bound by oath and statute to carry out the executions) into precisely the experimentation on which those campaigners now seek to predicate their constitutional claims. That is not an attractive posture. 

To declare the death penalty unconstitutional would be to do nothing more or less than to wrap one’s own policy preferences in a constitutional garb, a set of clothes that even the fabled Emperor might deem gossamer, and I can neither support it nor acquiesce in the tendentious characterization of the so-called Catholic publications. I do not understand why opponents of the death penalty are ready to try any strategy except the legitimate one: Persuade your fellow citizens, pass a law, and abolish it. That is the right way to proceed. Calls for judicial activism, illegitimate and illicit, are not. 


  1. See Rick Garnett, “Capital Punishment Must End,” Mirror of Justice, March 6, 2015, http://mirrorofjustice.blogs.com/mirrorofjustice/2015/03/capital-punishment-must-end.html; Editorial: Catholic publications call for end to capital punishment, National Catholic Reporter, March 5, 2015, http://ncronline.org/news/peace-justice/editorial-catholic-publications-call-end-capital-punishment; Elizabeth Scalia, Patheos Catholic Joins Joint Call to End Capital Punishment, The Anchoress, March 5, 2015, http://www.patheos.com/blogs/theanchoress/2015/03/05/patheos-catholic-joins-joint-call-to-end-capital-punishment; see also Kathryn Jean Lopez, Making the case against the death penalty, National Review, March 7, 2015, http://www.nationalreview.com/article/415034/making-case-against-death-penalty-interview.
  2. See Glossip v. Gross, ScotusBlog, http://www.scotusblog.com/case-files/cases/glossip-v-gross.
  3. See Dodd, In re Colorado shooting, 2 MPA 54 (2012); Catholic social teaching and public policy, 1 MPA 151 (2012); but see What does the Church really teach about vaccines, n.5, Feb. 4, 2015, http://simondodd.org/blog/?p=1753.
  4. Cf. Joseph Card. Ratzinger, Memorandum to Card. McCarrick on reception of communion, July 2004, http://www.ewtn.com/library/CURIA/cdfworthycom.HTM (last visited March 18, 2015)
  5. Cf. Dodd, Judges and excommunication, 3 MPA 108 (2013).

In re bullets and Obama

Republicans are always keen to charge Democratic Presidents with executive overreach, and vice-versa, especially when the White House is occupied by an especially-despised and aspirational President. But in the handwringing over moves to limit access to certain kinds of bullets, some critics have backed a lame horse. The Gun Control Act of 1968, as amended, bans the “manufacture or import [of] armor piercing ammunition.” 18 U.S.C. § 922(a)(7). In turn, the Act excludes from its definition of armor-piercing ammunition those “projectile[s] which the Attorney General finds [are] primarily intended to be used for sporting purposes….” 18 U.S.C. § 921(a)(17)(C). In effect, the Act expressly gives the AG (“the hand of the President in taking care that the laws of the United States in legal proceedings and in the prosecution of offenses, be faithfully executed,” United States v. Cox, 342 F.2d 167, 171 (5th Cir. 1965) (en banc)) discretion to classify or reclassify ammunition within this rubric; critics could scarcely have picked a worse windmill at which to tilt than the absurd notion that it is executive overreach for the Attorney General to exercise an authority that Congress has explicitly vested in him. This is not the President legislating without legislation; the legislation exists. It has been held in abeyance from a certain subset of bullets by the discretion of the AG, who is now exercising his discretion to expose that subset of bullets to the strictures of the Act.

One may certainly make the argument that the reclassification is arbitrary and capricious, but that is an APA claim, not one of executive overreach in the sense tendered. (To be sure, in one sense one might characterize any 706 claim as being one of executive overreach, but that’s not the sense that the critics intend.) One might also argue that there’s a non-delegation problem too; that’s a tough claim to press, but it’s not inconceivable. But this is not the redoubt on which to make one’s stand against the spectre of “King Barack.” As Justice Jackson put it in the steel seizure case: “When the President [or his hand, the AG] acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring)

The introvert candidate

Just like that, Jeb Bush becomes an interesting candidate to my mind. I can empathize with a fellow functional-introvert.


Frater Sophiae; cattus magnus.
Amatus est; nunc requiescat in pace.
De oculis sumptus,
semper in cordibus
Amavisse est tristitia dulcissima


A bootnote on vaccinations and the magisterium

It sometimes happens: A dawning realization that you and your interlocutor are in completely different discussions. My argument in What does the Church really teach about vaccines? was not that the Pontifical Academy for Life’s analysis of the vaccine question was wrong, but rather that it’s incorrect to describe that analysis as “the teaching of the Church,” because PAL doesn’t speak for “the Church.” 1 Not, mind you, that the pope couldn’t assign that authority to PAL, 2 but that he hasn’t. Consequently, since PAL doesn’t have the authority to bind the faithful to its judgment, and in the absence of a binding teaching from an agency or instrumentality that does, the question would seem to revert to the conscience and judgment of the individual Catholic. The upshot is that one may criticize a Catholic antivaxxer as being wrong, but one may not say that she is in dissent on the question. 3

In subsequent discussions with people who hold strong opinions both for and against vaccination, it has seemed to me that my interlocutors have almost uniformly misunderstood not only my point but the discussion into which I’m trying to enter. 4 My position has been taken by pro-vaccination interlocutors as stalking-horse for antivax sentiment, and by antivaxxers as an attack on Catholic morality as to vaccines. This is perhaps understandable since most of the commentary on this question has focused on the merits, that is, on the science and ethics of vaccines, but, truth to tell, I’m not terribly interested in the merits. I’m much more interested in the relationship of magisterium to conscience and how (that is, by what principles or standards) we decide whether the former preempts the latter on any given question.

As I approach that issue, I have in mind two legal concepts that I want to explicitly import into the discussion, because whether acknowledged or not, they frame my way of thinking. The first is the vital distinction between interpretation and construction that we have been taught by Randy Barnett and Larry Solum. 5 Interpretation is the process by which we determine the semantic content of a text. 6 Construction is the process by which we consider whether and how that content applies to concrete situations that go beyond the four corners of that content: Can and should we stretch it to apply to this concrete fact-pattern, and if so, how, how far, and into what shape?

The second is the importance of neutral principles. We must decide questions before us “on the basis of general principles … [that we] would be willing to apply to the other situations that they reach,” 7 that is, “reasons that in their generality and their neutrality transcend any immediate result that is involved.” 8 We cannot approach a question of interpretation or, a fortiori, construction with our eyes fastened on our preferred result in this case, but rather, the “‘instant case must be treated as an instance of a more inclusive class of cases, i.e. [this case] is treated in a certain manner because it is held to be proper to treat cases of its type in that manner.'” 9 

There are some teachings of the magisterium that are so clear on their face that little or no interpretation is necessary; others whence clear, concrete meaning can be extracted from their formulae with the archaeologist’s brush of interpretation. An example of interpretation in this context might be the work that Ladislas Orsy has done unpacking the content of the charism that we label “infallibility.” 10 These teachings yield rules that are determinate, that may be applied directly and immediately to concrete problems. (I outlined the concepts of determinacy, indeterminacy, and underdeterminacy in What does the Church really teach…?)

But there are many questions on which the Church seems to say nothing that is directly on-point. When there is no determinate teaching, and yet there do exist various teachings that colorably bear on the question, perhaps more-or-less remote, perhaps with more-or-less authority, Catholics are inevitably dragged into the construction business. This is true for Protestants, too: If the Bible is the rule for faith and life, then given a problem to which scripture does not speak directly, what is the best answer that is consistent with indeterminate scripture or within the glidepath of underdeterminate scripture? We are inevitably (and perhaps even more necessarily than in law, in which context Judge Easterbrook has cautioned us not to assume that the text must apply 11) trapped in what Larry Solum calls the “construction zone.” 12 When a question resides within that “construction zone,” one has to make up one’s own mind, and so long as the conclusion is within the permissible range of construction, it’s difficult to say more than that a given answer is (in one’s own opinion) wrong. As G.K. Chesterton put it, the walls of Catholic doctrine are the walls of a playground. 13 

There is a fillip to this. When we take positions that go beyond the Church’s teaching, when we sally forth into the construction zone, the answer at which we arrive cannot be projected back into Church teaching. Pro-vaccination Catholics can no more take flight on the wings of “the Church” than antivaxxer Catholics can shelter their judgment under those wings. (Both try.) Once a question has been located in the construction zone, that is, when interpretation has determined that the Church has no direct, binding, on-point teaching, then no matter how imposing an edifice of reasoning one might derive from the Church’s teaching, each person’s conclusion stands alone, naked apart from their own conscience and judgement. Attempts to armor one’s conclusion in the Church’s teaching are unavailing. If I stand on a soapbox and say “the Eucharist is the flesh and blood of Christ,” then I am speaking with the Church. I am articulating the Church’s teaching, and may clad myself in the armor of the Church and her faith and teaching. But if I go on to say “oh, and by the way, UFOs are real,” on that point, I cannot clad myself in the armor of the Church and her faith and teaching, because the Church has no teaching on the existence vel non of UFOs. She has other teachings, perhaps teachings that are relevant to the question; perhaps (dubitante) I have arrived at my opinion on UFOs solely by close and attentive study of and reasoning from the Church’s teaching. I may believe that my position is entirely and obviously the upshot of the Church’s teaching. But no matter how closely-reasoned or sincerely-held, no matter whether actually right or wrong, my position is not found in the Church’s teaching; it ineluctably goes beyond it, and to that extent, notwithstanding that I may think that it derives from the Church’s teaching, I stand alone, my opinion naked before the slings and arrows of the world. 

The UFO example illustrates the point effectively, but in a silly way, and so it may help to give two concrete examples of situations in which the Church’s teaching can supply the materials from which one derives a conclusion, and yet that conclusion cannot be said to be Church teaching. Think of the death penalty: Evangelium vitae teaches that criminal punishment “ought not go to the extreme of executing the offender except in cases of absolute necessity: in other words, when it would not be possible otherwise to defend society.” 14 It doesn’t matter how convinced you are that executing John Doe for crime X meets (or violates) that standard; it doesn’t matter how many statistics or Church documents you can cite in support of your conclusion, and it doesn’t even matter that I agree with you: You still cannot attribute your conclusion to the teaching of the Church. The teaching supplies the standard, but the application to concrete facts, the reasoning, the weighing, and the conclusion are yours. Or think of women in the ministry: Ordinatio sacerdotalis holds that the Church has no authority to ordain women to the priesthood. 15 But what about deacons? The Church also teaches specifically that deacons are not ordained to the priesthood, and although it seems clear to me that the logic undergirding Ordinatio sacerdotalis would extend to the diaconate, one nevertheless cannot say that the Church teaches that she cannot ordain women to the diaconate. 16 It simply isn’t a question that the Magisterium has (yet) settled.

If these analogies seem to be changing the subject, as one (antivax) interlocutor thought, that would seem to confirm that we think ourselves to be in different discussions. The question that I have in view is, again, not the merits of the vaccination debate, but rather the question is where Church teaching gives out and personal conscience must therefore begin. UFOs, female deacons, the death penalty, vaccines—they’re all of a piece, they are applications of the same principle to different facts. If the rationale on which we say that the magisterium decides question X would demand that we say also that the magisterium decides question Y, and if we are unwilling to say that the magisterium decides question Y, we must either confess that it is unsound as to X as well, or else confess that we are failing to apply the rationale neutrally. This becomes more important, not less, when the immediate question is emotive and the temptation to ad hoc reasoning therefore strong.

One antivax interlocutor insisted that what we were really talking about is abortion, perhaps the most emotive question of all. But that’s not correct; even if we were talking about the merits, we would be talking about vaccines. Not abortion. I understand the logic of the argument, which considers poisoned the fruit of the tree that grew from the acorn that fell from the tree that grew from the the acorn that fell from the poisoned tree. 17 But if one takes the Church’s teaching on abortion and reasons from that teaching to reach conclusions about vaccines, that is necessarily construction; I don’t necessarily disagree with the reasoning or the conclusion, on which I neither make nor imply any judgment herein, but one should not confuse that conclusion for the Church’s teaching, or construction of the Church’s teaching (even a persuasive one) for interpretation thereof. All of us have positions on issues that go beyond Church teaching and are, we hope, derived from and consistent with Church teaching. But it would be a terrible error—albeit not a novel error; just think of Joseph Cardinal Bernardin!—to mistake those positions for the teaching of the Church, or to misrepresent them as such, just as we would think it an injustice for other people with contrary (but no less sincerely-held) views on the question to mistake their views for the teaching of the Church and fault us as bad Catholics for not following them. 

At any rate: What I have said here is, to be sure, little more than some observations amounting to a sketch of the issue. But I do think that this is the interesting issue in play, not the merits of the vaccine question.


  1. See Simon Dodd,What does the Church really teach about vaccines?, 5 MPA __ (2015), available at http://simondodd.org/blog/?p=1753. Avery Card. Dulles suggested that it would be wise for “the magisterium … [to] avoid issuing too many statements, especially statements that appear to carry with them an obligation to assent. In doctrinal matters, as in legislation, freedom should be extended as far as possible and restricted only to the degree necessary.” Church and Society 24 (2008). The same risk is present, if anything a fortiori, in the proliferation of non-magisterial statements attributed to the mirage of “the Vatican.” Cf. John Allen, All the Pope’s Men 57 ff. (2007). I should perhaps note that the second sentence quoted is a fair summary of my background assumption: That just as there is a normative preference for (and so a presumption of) private ordering that leads us to think about statutory interpretation in terms of whether and to what extent the statute displaces private ordering, so also I assume that the individual has absolute freedom of conscience in interpreting and applying divine revelation save to the extent that the magisterium has intervened to restrict those choices.
  2. Within certain limits, the Church may assign her agents and instrumentalities. But see Ladislas Orsy, The Church : Learning and Teaching 51-52 1987) ( limits of delegation).
  3. To be clear, nothing I say herein passes on the legitimacy of dissent. See, e.g., Instr. Donum veritatis, 82 AAS 1550 (CDF, 1990); Orsy, supra, at 90 ff; John Hardon, Modern Catholic Dictionary 161 (1980). The notion of “dissent” presupposes that there is a teaching from which to dissent, and operates in the realm of the distinct (albeit related) question of the levels of assent due to the ordinary and extraordinary magisteria. My concern here is the antecedent question of whether there is a determinative teaching.
  4. Cf. Simon Dodd, The NSA Programs, 3 MPA 114, 123-24 (2013) (same problem of being caught between two warring factions trying to address an entirely different point).
  5. See, e.g., Barnett, Interpretation and Construction, 34 Harv. J. L. & P.P. 65 (2011); Barnett, The Original Meaning of the Commerce Clause, 68 U. Chi. L. Rev. 101 (2001); Lawrence Solum, Semantic Originalism 67 ff. (2008), available at SSRN: http://ssrn.com/abstract=1120244; Solum, Legal Theory Lexicon: Interpretation and Construction, Legal Theory Blog, Feb. 8, 2009, http://lsolum.typepad.com/legaltheory/2009/02/legal-theory-lexicon-interpretation-and-construction.html; but see, e.g., John McGinnis & Michael Rappaport, Originalism and the Good Constitution (2013). Barnett and Solum credit this distinction to Keith Whittington, and many others have written on the subject, but I learned it from them.
  6. See, e.g., Dodd, Doubt, 4 MPA __, __ (2014) (noting that “[i]t seems that we must have a more precise account of [the word] doubt’s [semantic] content before we can evaluate its utility” and canvassing the range of potential meanings), available at http://simondodd.org/blog/?p=1525.
  7. Kent Greenawalt, The Enduring Significance of Neutral Principles, 78 Colum. L. Rev. 982, 990 (1978).
  8. Herbert Wechsler, Towards Neutral Principles of Constitutional Law, 73 Harv. L. Rev. 1, 19 (1959).
  9. Greenawalt, at 987 (quoting Golding, Principled Decisionmaking, 63 Colum. L. Rev. 35, 40 (1963)).
  10. I have approvingly cited and/or discussed this in several posts: Ordinatio sacerdotalis and its limits, 4 MPA __, __ n.5 (2014); The infallibility question, 3 MPA 1 (2013); The Catholic Proposition, 2 MPA 80, 136 n.122 (2012).
  11. See Frank Easterbrook, Statutes’ Domains, 50 U. Chi. L. Rev. 533 (1983).
  12. See Lawrence Solum, Originalism and Constitutional Construction, 82 Fordham L. Rev. 453, 469 ff. (2013)
  13. Chesterton, Orthodoxy 269 (1909).
  14. EV56.
  15. Ap. ep. Ordinatio sacerdotalis, 86 AAS 545 (John Paul II, 1994).
  16. Cf. Dodd, Ordinatio sacerdotalis and its limits, 4 MPA __ (2014).
  17. Without making or implying any comment on the merits: To be more precise, the argument claims (and I will stipulate) that some components of one or more vaccines ultimately derive from two aborted foeti in the 1950s.

Reflections on Jesus’ mission

We are asked how we would describe Jesus’ mission and message, and whether it has changed since His time.

Since Eusebius of Caesaria’s fourth-century Historia Ecclesiae, it has been commonplace to conceive of Jesus as fulfilling three roles or missions, those of high priest, prophet, and king. No less often, we see an approach focused on those activities which seem to occupy the most time in His Earthly ministry: Healing and teaching. But I have long been persuaded by the Scottish presbyterian Horatius Bonar that this risks seeing Jesus as little more than a special man who performed essentially the same functions as had previous prophets, teachers, and healers, rather than focusing on what is unique to the God-man. Bonar put it this way:

If Christ is not the substitute, he is nothing to the sinner. If he did not die as the sin-bearer, he has died in vain. Let us not be deceived on this point nor misled by those who, when they announce Christ as the deliverer, think they have preached the gospel. If I throw a rope to a drowning man, I am a deliverer. But is Christ no more than that? If I cast myself into the sea and risk myself to save another, I am a deliverer. But is Christ no more? Did He risk His life? The very essence of Christ’s deliverance is the substitution of himself for us—his life for ours! He did not come to risk his life; he came to die! He did not redeem us by a little loss, a little sacrifice, a little labor, a little suffering: ‘He redeemed us to God by His blood’ (I Pet 1:18,19). He gave all he had, even his life, for us. This is the kind of deliverance that awakens the happy song, ‘To Him that loved us, and washed us from our sins in His own blood’ (Revelation 1:5).

“He came to die.” What a line! It grabs you by the lapels and commands that you flee from its repulsive affect or to bow to its inescapable truth. Jesus may be a great teacher, and a healer par excellence, but He is Christ first and foremost. Of course, this isn’t to take away from the importance of His teaching or healing. But it is to underscore that we must understand Him primarily in terms of that which is exclusive to Him: There had been prophets who taught before Jesus, so the Messiah could not be merely a prophet; and there had been healers before Jesus, so the Messiah could not be merely a healer; and Jesus left a Church to continue those ministries of teaching and healing. What is unique to Jesus Himself, and what must therefore be understood to lie at the core of his mission, is Calvary: By His sacrifice of atonement, by His passion, by His cross and resurrection, He has set us free, as Isaiah prophesied He would.

In our assigned reading [Editor's note: N.T. Wright, The Mission and Message of Jesus in The Meaning of Jesus: Two Visions (1999)], Wright underscores that while the Jews of Jesus’ day expected a Messiah, they had in mind a very different kind of Messiah. Mired in Earthly oppression, they were expecting an Earthly liberation. They expected to be set free from the yoke of Rome and its Herodian surrogates; they seemed not to see past the figurative fall of Israel’s babylonian exile to the very real fall of Man in Adam, and they lost sight of God’s real interest, which is not in national borders and whose blood soaks which sand, but rather in the hearts of His most precious creation, Mankind, forged in His own image and likeness, and the relationship that we ruptured in Eden. In the final analysis, humanity is broken at its root—this is the “T” in the popular Calvinist “TULIP” mnemonic, “total depravity,” or “original sin” in the vernaculars of most other Christian traditions—and before any good works in our lives can avail us anything, before any amount of orthopraxy will do us any good, we have to fix our relationship with God. And there’s nothing that we could have done about that before Jesus fulfilled the law on Calvary’s altar. That’s not to say that we don’t need the teaching of Jesus; we can lose our salvation by our conduct, and while it’s arguable that the law and prophets provide a sure guide to avoiding what the Catholic tradition calls “personal” sin (in contradistinction to the afore-mentioned “original” sin), the experience of Israel and the need for Jesus to explain how far afield it had strayed suggests that we must pay attention to his teaching, too. What is essential, however, is the need for Christ’s atoning sacrifice and our need to avail ourselves of it.            

How then should we describe Jesus’ mission? Wright says that “Jesus invited His hearers to repent and believe the gospel.” Yes, but let’s be precise: What was that Gospel, that good news? That through His blood, Jesus would make it possible for us to be reconciled to God, and through our repentance, we can inherit salvation. And that mission is as vital and urgent today as it was then.

[Editor's note: In other words, I am proposing that Jesus' mission is inseparable from the question of who He is, treated here.]


The design of this blog is quite deliberate. Typography is something that interests me, and I did have in mind, when selecting and customizing the theme, that it should be simple, uncluttered, and readable. For example, it isn’t accidental that the footnotes are a contrasting, sans-serif font. The line-length on this blog should vary from about sixty to seventy characters, which should approach optimal readability. It should be a very crisp black-on-white. Nevertheless, I have come to the conclusion that that justified type is marginally less easy to follow than left-aligned text, so I have changed the stylesheet accordingly.

Space is big, redux

If you’ll recall my 2012 post Space is big, in which I pointed out that the speed of light is actually quite slow and that galactic exploration requires speeds orders of magnitude faster than those claimed in shows like Star Trek,
this video may help visualize the fact. It gives a photon’s-eye-view of a ride out from the Sun at (naturally) the speed of light.

What does the Church REALLY teach about vaccines?

An outbreak of the measles virus has focused attention on a small but growing number of American parents who refuse to have their children vaccinated, citing a variety of medical and ethical concerns. This post is agnostic on the merits of that question. 1 I want to focus on a different and precise point: Whether Church teaching requires Catholics to take a particular position on that question. In an article for the Catholic News Agency, Mary Rezac tells us that the answer is yes:

[T]he National Catholic Bioethics Center (NCBC), a non-profit research and educational institute committed to applying the moral teachings of the Catholic Church to ethical issues arising in health care and the life sciences … , along with the Pontifical Academy for Life ["PAL"]—a Vatican body established to provide information about issues in law and biomedicine—have studied the moral issues surrounding vaccines and have determined that it is morally licit, and even morally responsible, for Catholics to use even those vaccines developed from aborted fetus cells … [PAL] determined that the good of public health outweighs the distanced cooperation in the evil of the abortions performed in the 1960s from which the cell lines were developed. No new abortions have been performed to maintain these vaccines, and no cells from the victims of the abortions are contained in the vaccines.

Currently the vaccine lines for rubella, chicken pox, and hepatitis A are the remaining vaccines that have been developed from aborted fetal cells and for which there is no alternative available.

“One is morally free to use the vaccine regardless of its historical association with abortion,” reads a document from the NCBC based on the findings from [PAL, although the] … document goes on to say that Catholics should express their opposition to vaccines developed from aborted cells, and that there is an obligation to use alternative vaccines, should they exist. 2

If the Church has answered the vaccination question, as Rezac’s headline implies, then Catholics must (we will stipulate) give way. 3 The problem here is that neither the NCBC nor the PAL has the authority to answer the question for the Church, and Rezac identifies no answer from any person or body which does have that authority. 

The magisterium sets out to answer many questions of faith and morals. Inevitably, however, there are gaps. Aside from the obvious case in which the Church simply has no teaching at all, there many concrete questions on which somewhat-applicable magisterial teaching is underdeterminate. Briefly-stated, law is underdeterminate in relation to a concrete case when the sum total of legal rules applicable to that case confine the constellation of possible results but allow for more than one result, requiring the decisionmaker to supply a rule of decision from some other source. 4 “2+2″ is determinate; “2 + x where x is undefined” is indeterminate; “2 + where x ≤ 3″ is underdeterminate. Similarly, the magisterium, or any particular magisterial teaching, may be underdeterminate as applied to a concrete question because, for example, the magisterium may never have pronounced on the precise question at issue, or it may not have promulgated teaching of binding force on the topic, or binding teaching in the general area of the question may be too abstract to provide a rule of decision or so remote that the analogy required to apply it vitiates its binding character. 

When the Church has not spoken on a particular point, or if its teaching is underdeterminate, the question is necessarily remanded to the conscience of each believer to form their own judgment. When we confront an ethical problem, then, the first question is not “what is the right answer.” I have an opinion on vaccines; the anti-vaxxers have opinions on vaccines; I’m sure that the pope has an opinion on vaccines; and those opinions may be decisive as to our judgment if the Church has not spoken on the point. That is the first question: Whether the magisterium has preempted our judgment by promulgating binding teaching on the question. “Does the Church bind the faithful to a particular answer on this question?” And if not, does the Church bind the faithful to a particular inquiry, as she arguably does in, for example, the death penalty, where she does not bind the faithful to a simple yes or no, but instead prescribes the standard by which we must asses individual cases? 5

Nevertheless, although the Church can preempt the faithful and bind them to a particular answer, only the Church can do so. If Father Jazzhands of Rapid City, MI writes an op/ed in which he tells you his opinion on the question, that isn’t the decision of “the Church,” binding on all the faithful. It doesn’t become such even if Father Jazzhands styles it as a decision and claims the authority to do so. Why not? Because the Church has never authorized Father Jazzhands to make that determination. She might: She may, as a general matter, choose the agencies and instrumentalities through which she speaks. But whether or not she has done so is a question one must always ask when facing what purports to be a decision: Even if the promulgating body intends it to be a decision, does that body have the authority to issue that decision?

Neither the Catechism of the Catholic Church nor even the Compendium of Social Doctrine say a word about vaccines. I am unaware of any magisterial authority that addresses the question. And I should perhaps remark that because vaccines are inescapably a novel question, having come into existence only in recent centuries, we should perhaps be cautious about too-readily accepting claims that the Church has provided a binding answer on the subject. 6 

At any rate, the only authority cited by Rezac is PAL. And let’s assume that PAL intended to provide a definitive, binding answer on the vaccine question. PAL does not itself belong to the divine constitution of the Church, and so, if it has authority to answer that question, it must have been given that authority. So which pope gave it that authority? By which instrument? PAL was established by the motu proprio Vitae mysterium, 7 and nothing in that motu proprio confers on it the authority to wield binding, magisterial power. So on its face, Vitae mysterium doesn’t give PAL authority to answer the question. It may fairly be objected, however, that the effect of legislative lacunae depends on the backdrop against which the legislation is enacted. 8 There is no need to specify an attribute that the thing created possesses by its very nature; a curial Congregation, for example, is understood to exercise vicarious authority over the subject matter confided to its jurisdiction, and so we do not find a detailed elaboration of the nature and functions of a congregation in the apostolic constitution Pastor bonus, 9 just assignments of jurisdiction. If in 1994 a Pontifical Academy was ordinarily understood to wield magisterial authority, then PAL would posses that authority unless Vitae mysterium specifically withheld it. Were they? I don’t know. 10 But I would suggest that it is the burden of those who would insist that the teaching is binding to show the basis on which they would preempt the decisions of more than a billion Catholics. 

I understand the desire to invest PAL’s conclusion with an unearned authority. Anti-vaccination sentiment seems to be getting out of control with worrying consequences, and any stick to beat a dog, right? If the Church has preempted the question, that’s a good stick. But overreading PAL’s authority for convenience isn’t a sound position to take, first and most importantly because it’s unprincipled, second because, if taken seriously, it would bind us to every stupid utterance that comes out of any pontifical institution, and third, and perhaps most troubling, it asserts an unjustified power over the consciences of the entire body of the faithful. The question that you have to ask is, by what authority or right may the independence of each believer’s conscience be preempted? A few days ago, I remarked in another context that if your best answer to the question “how do we know X” begins with “Our lady of Y said,” your real answer is “we don’t know X.” In the same way, if the answer to that question begins with the words “[t]he Pontifical Academy of Y” or “the pontifical council for Z,” then it seems to me that the real answer is “we don’t know X.” And both for the same reason: Neither has the power to bind the assent of the faithful. 11 I disagree with the anti-vaxxers on the merits. But by what right or authority would I bind them to a different answer? Symmetrically, by what right or authority would they bind me to their answer? I cannot insist that they are at odds with the Church unless I can show clearly that there is actually a binding teaching with which they are at odds.

Put another way: Rezac’s expert, Dr. Cieslak, can say (and I would say) that “[a]s a Catholic I would argue that it’s a socially conscious thing to do,” so you ought to do it. But if he, or I, or Rezac, or anyone else wants to say that “as a Catholic you have to do it, you foolish anti-vaxxer,” that “you’re not just wrong about this, you’re actually defying the teaching of the Church,” then we had better be able to show the existence, content, and, ideally, the source of that teaching. If you don’t have an authority, all you have is an opinion! And I have no right to demand that someone else change their opinion to match mine, any more than they have a right to demand that I change mine to match theirs.

So what does the Church really teach about vaccines? I think that the safest answer is that the Church teaches nothing at all about vaccines,  as yet, and the question is thus left to the conscience of individual Catholics. 


  1. For the record, however, I am not myself agnostic on that question. The “Anti-Vax movement is kooky, and I urge parents to have both children and pets vaccinated. See also Kendall Breitman & Manu Raju, Where 2016 GOPers stand on vaccinations, Politico, Feb. 3, 2015, http://www.politico.com/story/2015/02/ted-cruz-vaccinations-114862.html (last visited Feb. 3, 2015).
  2. Rezac, Measles are making a comeback, so what does the Church teach about vaccines?, CNA, Jan. 29, 2015, http://www.catholicnewsagency.com/news/measles-are-making-a-comeback-so-what-does-the-church-teach-about-vaccines-38175/ (last visited Feb. 3, 2015).
  3. See CCC 2039.
  4. See, e.g., Lawrence Solum, Originalism and Constitutional Construction, 82 Fordham L. Rev. 453 (2013); Randy Barnett, The Original Meaning of the Commerce Clause, 68 U. Chi. L. Rev. 101, 108-110 (2001); Solum, On the Indeterminacy Crisis, 54 U. Chi. L. Rev. 462, 473 (1987).
  5. See Encyc. Evangelium vitae, no. 56, 87 AAS 401, __ (John Paul II, 1995). The binding authority of this teaching is not clear, cf. Antonin Scalia, God’s Justice and Ours, First Things, May 1, 2002, http://www.firstthings.com/article/2002/05/gods-justice-and-ours, but I assume without deciding that it is  binding.
  6. The magisterium is not a batphone; the pope doesn’t call Commissioner God-don for advice. The First Vatican Council helpfully teaches that “the Holy Spirit was promised to the successors of Peter not so that they might, by his revelation, make known some new doctrine, but that, by his assistance, they might religiously guard and faithfully expound the revelation or deposit of faith transmitted by the apostles.” Dog. Con. Pastor aeternus, 6 Acta Sanctae Sedis 40, 46  (1st Vat. Co., 1870). Old doctrine unquestionably applies to new phenomena, but its application to such is likely to be more intricate or analogical than its application to old, familiar phenomena, especially those that existed when the teaching was first given. A degree of caution is therefore warranted, and, I might suggest, ought to be assumed: We should not hastily presume that the Holy See has tromped in where angels have yet to tiptoe.
  7. 86 AAS 385 (JP2, 1994).
  8. See, e.g., Abuelhawa v. United States, 556 U.S. 816, 823 n.3  (2009); Meyer v. Holley, 537 US 280, 285 (2003); United States v. Bailey, 444 U.S. 394, 415 n.11 (1980).
  9. 80 AAS 841 (JP2, 1988).
  10. It seems doubtful. A pontifical academy would seem to reside in the general category of pontifical institutions such as Pontifical Councils and Pontifical Commissions which typically exercise advisory or research functions, and occasionally (as in the Pontifical Commission Ecclesia Dei, for example) delegated authority. Consider that the Pontifical Academy of Sciences is presently headed by Werner Arber, nominally (at most) a protestant. See Wikipedia, https://en.wikipedia.org/wiki/Pontifical_Academy_of_Sciences#President; Wikipedia, https://en.wikipedia.org/wiki/Werner_Arber. Does Dr. Arber ex officio speak for the magisterium? Consider that prior to Humanae vitae, 60 AAS 481 (Paul VI, 1968), there was the June 1966 “final report” the Pontifical Commission on Birth Control, which concluded that contraception was okay. See, e.g., Richard Fehring, An Analysis of the Majority Report “Responsible Parenthood” and its Recommendations on Abortion, Sterilization, and Contraception, http://uffl.org/vol13/fehring03.pdf. Between that report in June 1966 and Humanae vitae‘s promulgation in July 1968, was the teaching of “the Church” that contraception was okay? If you’re going to suggest that the decision of a pontifical institution has the authority to settle the vaccination question, you really can’t avoid getting into the long grass of “why.”
  11. See, e.g., Colin Donovan, Apparitions/Private Revelations, EWTN, 2001, https://www.ewtn.com/expert/answers/apparitions.htm.