In Dialogue With Justice Amy Coney Barrett

By Ikenga Chronicles October 27, 2020

In Dialogue With Justice Amy Coney Barrett

— Simon Aihiokhai

The last canon of the 1983 Code of Canon of the Roman Church ends with the following: “Suprema legem salus animarum…” This law is situated within the context of the removal of a pastor by a bishop for offenses that the iuridical process has judged worthy warranting a removal. Yet, the Church pauses and reminds all, including herself, that the foremost binding law and principle that governs the Church is the salvation of souls. It states, categorically, the follwing: “…canonical equity is to be observed, and the salvation of souls, which must always be the supreme law in the Church, is to be kept before one’s eyes.” (Canon 1752).

What is thus guiding the Church to remind herself of this principle? It is the ancinent principle of Epikeia. Epikeia dictates that when a situation does not fit well within the confines of the law, a bias towards charity holds supreme. Not to do that is to become slaves to the law. The law is made for us and not us for the law. This principle goes back to both Greek times and Roman law. It points to the notion of “reasonableness” as it pertains to the interpretation of the law, both of the text itself and the will of the legislator ( that is not always known). Epikeia reveals a nuance in interpretation; that the text of the law does not always reveal the totality of meaning being revealed in the text. The missing part in the meaning of the law resides in the totality of the context of the one interpreting the text and the realities defining the one for whom the text is being interpreted. Epikeia is grounded and has validation only in the virtue and principle of mercy.

Upholding the primacy of mercy in ecclesial life and canonical processes, the Church saw the need to remind herself that it is a church grounded in mercy. It derives its identity, mission, and purpose from God’s mercy in the world through and in her.

Tonight, Justice Amy Coney Barrett was sworn in as an associate justice of the Supreme Court of the United States of America. She proclaims herself to be a textual fetish jurist; one who believes that she can get to the correct and exhaustive meaning of the words of the constitution without factoring her own agency as a meaning making creature who always comes to a text with a baggage of meanings. She is a puritanistic jurist in relation to the law and how the law is to be interpreted. While the political zingers of the day may hail her or even condemn her, my focus is none of those. Rather, my focus is on the harm that will come to this country if a fetish adherence to the constitution that fails to account for epochal reading of the law through the engagement with the signs of the times prevails. To read the constitution in accordance with the signs of the times is to embrace a living constitution. To reject this approach is to enthrone a dead constitution on a living nation. That may very well be the beginnings of the end of the project called America.

Tonight, conservatives and Federalists, may have won the battle, but they just lost the war. To ensure that the war is not lost, may I appeal to Justice Coney Barrett that her own faith tradition, the Catholic Church, has its own way of reading the law, one that she can benefit from. It is my hope that she can enter into dialogue with canonists who would engage her on this matter..

May I also think aloud here. Are our law schools, especially those run by religious institutions, teaching the breadth of the reading of the law via the principle of Epikeia that shaped both Roman Law and ecclesiastical law that today is understood as Canpn Law? Even Sharia Law in Islam upholds this same principle of Epikeia. Puritanistic reading of the law and the claim that the heart of the law can be attained through the bracketing of all other insinuating circumstances is traceable back to the religious movement called Puritanism that is at the heart of American religiosity and social life,. It is time for us to start making these connections to see how we have become a people who see things as Black and White and forget that most of our lives play out within the pendulum of greyness and not at the extremes of Black and White.

Greetings to our new supreme court justice. But her work to unite this nation must now begin. The body that was to confirm her is divided. The nation is divided. How she proceeds now will very well determine the future of this country. I hope she will pause and begin to figure out how she can help heal this nation. We are now too divided to withstand any external or internal force that is aimed to end our democracy. May we enter tomorrow as one nation locked in hands and solidarity to make our world a better place for all of humanity. Enjoy!

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