You must first define what absolute moral law is. I'm not trying to be funny. Every religion has its moral laws, even Islam. I'm sure that some moral laws relating to social good would not be shunned by the left. Part of the major differences between the left and right involve the extent to which the federal government involves itself in the social well being of its citizens. From that perspective would you not agree that the left seems more concerned with moral law than does the right?
I understand that the strict constitutional constructivism is in opposition to what the left wants, -- secular law by liberal punditry, -- as well as to what Christian conservative want, -- natural moral law.
Again, perhaps if you can define that in some universal fashion, that is, a set of laws that all can agree on, then we have a better basis for discussion.
Indeed, judges, and everyone else who comtemplates a position of power today should decide whether or not he should avoid any association with the secular state.
Well, perhaps we are getting somewhere. I would have far more respect for a judge who stepped down because he could no longer support the Constitution than one who would surreptitiously inject his own personal set of moral views into a constitutional issue where those views measurably redefined a settled issue.
In Europe in particular, it seems to me that it takes certain Quixotic quality for anyone to contemplate a career in anything to do with government.
Perhaps they do not see a conflict between their own personal moral values (law) and the laws of the land. Perhaps they see the betterment of society as highly consistent with such moral laws?
It would be a straw man for you, for example, to argue that a judge would then be permitted to interpret any law as he sees fit and claim adherence to moral law. In order to do so the judge must see a clear moral law imperative, and a clear man-made law mandate againt the imperative.
His job is not to interpret laws to be fit. For example, many would consider the legislation enacted under the Clinton Administration relating to welfare reform to be highly unfit from a moral perspective. But as a judge, the decision must be whether or not it is compatible with the Constitution, not whether it is fit. In his decision, the judge may certainly comment on the unfitness of the law (if that is what he believes) but the Constitution is his guide. As I have indicated earlier, without such a defined role for the judiciary, chaos would be the order of the day. Because no matter how much you personally believe that you have a clear, concise and undebatable set of moral laws, so does every judge. And they likely all differ in one respect or another. The straw man you refer to obviously involves abortion. As a lower court judge, most abortion cases may well be moral imperatives to him, but they are settled law. As I have indicated though, the USSC can reopen issues as it sees fit, and certainly has no requirement to adhere to Stare Decisis. Having said that however, it should be noted that if Roe is reversed, it will be because there is no constitutional right to an abortion....not because it is immoral. I know how you feel about divorce, and the judge may likewise feel it is morally unacceptable. But it is nonetheless the law of the land, and fully in keeping with the Constitution. He has no choice but to comply with those laws.
This having been said, it is a well-establishes tenet, particularly in America, that ultimately, morals trump the man-made law, even the constitutional law.
Perhaps, but only if it agrees with the Constitution.
In the past we saw it with slavery and Jim Crow laws.
Slavery was never a right contained within the Constitution, but one of those unlimited rights seen through the 9th and 10th Amendments. It took a constitutional amendment to end slavery. It was not ended by some moral law. Most states had long ago ended slavery, and as immoral as it was, only the Constitution could prevent it. As for Jim Crow laws, court decisions that ultimately outlawed them may have been made because of moral imperative, but was ultimately because they were found to violate the Constitution. Remember, many of the laws now on the books enacted by the left for the betterment of mankind were done so because of their belief that moral imperative was operative, and the courts that agreed did so because of the Constitution, not moral imperative.
Those, in my humble opinion, should be ignored across the board by those who have the misfortune to serve in government or in the courtroom, here or in Europe, and the effects of these laws should be peacefully resisted by everyone as a matter of Christian duty and civic duty.
I have no problem with citizens working for change in the laws, but, as I've said before, I do have a problem with government officials inserting their moral laws in place of the secular laws they took an oath to uphold. Heck, why stop with just those? Let's let every government official and judge refuse to uphold any law he considers immoral. There are literally thousands of laws which would qualify for someone's moral imperative. Some consider capitalism the most immoral and evil economic system on the earth. Under your rules for nullification, a police chief should be able to shut down any corporate business if he believes it to be immoral. And there is the sale of birth control paraphernalia. A Catholic judge should be able to shut that down. A Jewish judge could hardly be faulted for not prosecuting a hate crime against an Islamic place of worship....and so on.
It is also possible that on occasion some judges would take the moral guidance of their religion to areas where political law should rightly prevail. But, as I mentioned earlier, if they do so and contribute to an intolerable amount of anarchy, then they would be violating the moral law as well. Since typically the decision to follow one's conscience is a career-ending one, I would not worry that the legal system would get destabilized to the point that more harm than good is done.
I understand that these boundaries are not precise, and that is because we are a society of men. You seem to think that it is possible to use the idiosynchratic American model of constitutional law and two-tiered judgeships, those that deal with constitutionality and those who deal with deciding the actual cases, to create a society of computer programs that interpret the Constitution with robotic precision and arrive each time at morally valid decisions. You may even, post-factum, backfill the necessary constitutional scholarship to "demonstrate" that if only the judges followed the Constitution, Dread Scott would not have been law, or Roe v. Wade would not have been law. But the empirical historical fact remains that it took courageous judges' violation of their oath of office to take sides with the moral law and not with the constitutional law as they at the time understood it. It will take similar courage from a future Supreme Court nominee to overturn Roe v. Wade, a courage I have not seen so far in this empty suit #2 they've been dragging along lately.
I think we have strayed far off the topic of the cultural climate of Europe. How familiar are you with Spooner's essays on jury nullification? I thinkI'll post something from him later.