Applying stare decisis and originalism to Vatican II
The rumpus brought by the recent ruling of the United States Supreme Court has subsided now, a bit. But late at night I still find my mind wandering across terms in the legal lexicon. I have been monitoring the developments of the Dobbs v. Jackson case since late last year, and I can tell that although the verdict has already been released, I still can’t get rid of the words “stare decisis,” “precedent,” “originalism,” “Scalia” and many more.
My mind’s late night rituals led me to an interesting hypothesis. Why don’t we apply all those legal concepts to internal Church matters? If for the past fifty years legal scholars have been divided on the issue of abortion, the Church also has been divided over the last fifty years on the reforms of the Second Vatican Council.
Let us begin with stare decisis, the doctrine that binds judges to precedents. “A conclusion reached in one case should be applied to those that follow if the facts are substantially the same”. Those who wished that Roe v. Wade be upheld clung to this doctrine — arguing that abortion is already a settled law and should no longer be reversed.
Now, shouldn’t Pope Francis, in Traditiones Custodes be bound, or at least, give honor, to Pope Benedict XVI’s Summorum Pontificum? The facts of the case are the same — some group of clergy and faithful wanting to celebrate the Tridentine Mass. Oh! Perhaps Pope Francis should also follow his predecessor’s call for a hermeneutic of continuity (“What earlier generations held as sacred, remains sacred and great for us too”). Lastly, ecclesiastical restraint should be exercised instead of ecclesiastical activism — the authority to regulate the Tridentine Mass should be returned to the faithful and their pastors!
To make this more enjoyable, perhaps we can go to Vatican II per se. One may argue that Vatican II’s principles are already settled ones. However, can we say that at least some of their reforms were egregiously wrong from the start? Perhaps Vatican II itself did not follow stare decisis. What she did was rupture — the era before it appeared like a dark, different, and bygone era. Thus, there appears to be a major disconnect between Dignitiatis Humanae (1965), Lumen Gentium (1964), and Dei Verbum (1965) with Pascendi Dominici Gregis (1907) and Quas Primas (1925). So if the facts of these documents involved religious liberty, salvation, and Divine revelation, but they had different decisions, then stare decisis was not followed in the Vatican II documents!
Now let us jump to the other side of the Roe debate — the principle of originalism. This doctrine proposes that the intent of those who ratified a statute should be put into consideration when interpreting a statute. And since abortion had never been the intent of the ratifiers of the Fourteenth Amendment, as the Dobbs ponencia showed, then there is no such thing as a constitutional right to abortion.
So should we adopt originalism in interpreting Vatican II documents? For example, Sacrosanctum Concilium clearly intends not to let go of the Latin, nor of Gregorian chant, nor of ad orientem worship. Neither did the Sacrosanctum intend the “legalization” of clown masses. In fact, the sacred music provisions in the document promote Gregorian chant, considering it as “suitable for the Roman liturgy” and declaring that it “be given pride of place in liturgical services.” It also mentioned polyphony as an alternative to Gregorian chant — not pop music. And in response to the dearth of Missa cantata’s and the normativity of Low Masses, paragraph 117 declares the need to have books for Gregorian chant, as well as simpler melodies for small churches whose choirs might lack training (or churches without choirs to begin with). And voilà! The Graduale Simplex was released in 1967 in response to this paragraph. Yes, it was released three years before the New Mass was promulgated. Ergo, is the promotion of Gregorian chant more faithful to the original intent of the document?
Well, our only takeaway after all these is this: Dobbs v. Jackson is a dangerous precedent for Vatican II! As a result of Dobbs, the Church might, at the right time, reconsider all her substantive reform decisions because she has the duty to correct the error established in those precedents.
