Antonin Scalia and His Critics: The Church, the Courts, and the Death Penalty

In his article “God’s Justice and Ours” (FT, May), Justice Antonin Scalia states correctly, I believe, that Pope John Paul II in Evangelium Vitae did not intend “authoritatively to sweep aside (if one could) two thousand years of Christian teaching.” Nevertheless he holds that the Pope’s position in that encyclical contradicts the tradition. He therefore disagrees with my attempts to show that the Pope’s teaching is compatible with the tradition. Justice Scalia and I differ not on the tradition, nor on the right of the state to impose the death penalty, but on the interpretation of John Paul II. While we agree that the Pope does not intend to overthrow the tradition, we differ on whether he contradicts it. At the same Chicago conference at which Justice Scalia originally delivered his paper, I delivered a paper of my own, explaining how I interpret the Pope. I can only summarize some of the main points in this letter.

At one point John Paul II says that the death penalty should be used only “when it would not be possible otherwise to defend society.” Does this mean mere physical defense against the criminal himself? If so, capital punishment could not be warranted by other goals upheld in the tradition: deterrence of other potential offenders, the potential conversion of the convict, and especially expiation or retribution. But this narrow interpretation would run up against many biblical testimonies. St. Paul clearly teaches that the magistrate does not bear the sword in vain, but is God’s minister “to execute wrath on him that doeth evil” (Romans 13:4, KJV). I agree with Justice Scalia’s exegesis of this passage.

If the Pope were opposing the biblical and traditional doctrine, Catholics would be confronted by a painful dilemma: either to dissent from past teaching or to dissent from the Pope. Many might decide, with Justice Scalia, that the former had more solid warrants.

Like Justice Scalia, I doubt that the older tradition is reversible, but even if it were, I contend any ecclesiastical authority reversing it would have to propose the new doctrine with great emphasis and show why the older position is no longer tenable. In fact, however, the Pope says nothing against the traditional doctrine. In EV §56 he approvingly quotes the Catechism of the Catholic Church as saying that the primary purpose of the punishment that society inflicts is “to redress the disorder caused by the offense” (CCC §2266). In clarifying the meaning of “redress” the Catechism mentions the expiatory value of punishment.

The Pope goes on to say that society must impose adequate punishment to redress the violation of rights. Punishment, he says, is not adequate unless, among other things, it defends public order. Public order, according to the Catechism, ought not to be construed in a positivist or naturalist manner as mere physical protection but as including conformity with objective justice (CCC §2109). It is at least plausible to think, with Professor Steven Long, that when the Pope speaks of the protection of society as grounds for using the death penalty, he may have more in mind than mere physical defense against the individual criminal. To vindicate the order of justice and to sustain the moral health of society and the security of innocent persons against potential criminals it may be appropriate to punish certain crimes by death. (In saying “may be” I leave open the possibility that under certain circumstances it may not be.)

In my interpretation of the Pope I am consciously using what Joseph Cardinal Ratzinger and others have called a “hermeneutics of continuity.” My desire is to be faithful both to the past and to the present teaching of the Magisterium. Catholic doctrine unquestionably develops, but every authentic development, as Cardinal Newman showed, must grow out of the past and confirm it. To contradict a doctrine is in no way to develop it.

As to the Pope’s assertion that the death penalty should today be rare, I would reaffirm, against Justice Scalia, that this is to be understood as an exercise of the Pope’s prudential judgment. “Prudential” has a technical theological meaning with which Justice Scalia seems not to be familiar. It refers to the application of Catholic doctrine to changing concrete circumstances. Since the Christian revelation tells us nothing about the particulars of contemporary society, the Pope and the bishops have to rely on their personal judgment as qualified spiritual leaders in making practical applications. Their prudential judgment, while it is to be respected, is not a matter of binding Catholic doctrine. To differ from such a judgment, therefore, is not to dissent from Church teaching.

It is of course possible to hold, with Justice Scalia, that the Pope is imprudent. Catholics are not obliged by their faith to hold that their pastors are always prudent. I personally agree with the Pope that the death penalty should be very rarely, if ever, applied in the United States today. In saying this I do not rely only on “steady improvements in the organization of the penal system,” the motive mentioned by the Pope. I would add that limitations and deficiencies in the penal system create a danger of miscarriages of justice. In our society, moreover, the death penalty is often seen as an instrument of popular vindictiveness and retaliation rather than of divine justice, since the transcendent order of justice is not generally recognized. The practice of capital punishment also reinforces that disrespect for human life which is all too prevalent in our society. For these and other reasons, I would be reluctant to approve of the death penalty except in cases of rare and prudential judgment assisted by the wisdom of the duly appointed pastors of the Church.

If Justice Scalia were able to accept my understanding of the Pope’s position, he would, I hope, be able to withdraw what he now considers to be his “dissent.” In any case, I trust that he will feel no inhibitions about continuing to serve on the Supreme Court as its most eminent defender of constitutional government.

Avery Cardinal Dulles, S.J.
Fordham University
Bronx, New York

Justice Scalia’s argument about the death penalty has two aspects. The first concerns the duty of the judge; the second has to do with the respect owed by Catholics to the Pope’s call for the virtual abolition of the penalty in Evangelium Vitae.

As to the first, the duty of the judge, there can, it seems to me, be no reasonable disagreement. The Constitution several times explicitly recognizes capital punishment, leaving legislatures free to choose or reject that sanction. Most American legislatures have chosen it. By what warrant, then, can a Justice of the Supreme Court abolish what the Constitution allows and legislatures have chosen? No such warrant exists. Those Justices who have in the past announced that they would never uphold the imposition of the death penalty but would declare it unconstitutional—William Brennan, Thurgood Marshall, and Harry Blackmun, for example—were, to that extent, no more and no less than civil disobedients. In fact, such lawless magistrates are more reprehensible and more dangerous than the civil disobedients of the streets, for the magistrates, though sworn to uphold the law, instead attack the law from within and are immune to the punishments their brethren of the streets may receive.

It is common for a lawless judge to justify his vote by claiming that “our morality has evolved,” so that the death penalty is now barred by the Eighth Amendment’s proscription of “cruel and unusual punishments.” Hence it does not matter that the ratifiers who made the Constitution law decreed that capital punishment was legitimate. There are at least two problems with that assertion. A flat statement of law cannot “evolve.” The words are what they are and mean what they were understood to mean when they were adopted. But grant the premise that meaning changes as morality changes. Even so, the unconstitutionality of capital punishment does not follow. If, in fact, capital punishment were inconsistent with “our evolving morality,” there would be no death penalty statutes on the books. Legislators would not enact them. Yet many states and Congress have done so, which shows where, in fact, our morality stands. When a Justice says “our” morality has evolved, it means only that his morality opposes the sanction, a fact that may be of interest to his biographer but is legally irrelevant.

What, then, is a Catholic judge to do if the Church now, for the first time in two thousand years, makes the condemnation of capital punishment binding on Catholics? Justice Scalia is absolutely right. He must either violate his duty as a Catholic or his duty as a judge. If neither of those choices is acceptable, and neither should be, his only alternative is to resign. A halfway measure, disqualifying himself in capital cases, would be an unacceptable evasion of responsibility, for that might often mean that the death penalty would be overthrown by other judges. Recusal would then enable an unconstitutional action by a court.

Justice Scalia’s position has been subjected to a vigorous attack by Denver Archbishop Charles Chaput. Arguing that “if we say we’re Catholic, we need to act like it,” the Archbishop goes on to say that “when Catholic Supreme Court Justice Antonin Scalia publicly disputes Church teaching on the death penalty, the message he sends is not all that different from Frances Kissling disputing what the Church teaches about abortion. Obviously, I don’t mean that abortion and the death penalty are identical issues. They’re not, and they don’t have equivalent moral gravity. But the impulse to pick and choose what we’re going to accept is exactly the same kind of ‘cafeteria Catholicism’ in both cases.”

That is pretty rough talk, and, in my non-Catholic view, wholly unjustified. The Church has firmly opposed abortion from its earliest days. It has also favored the death penalty for two thousand years—until now. I leave to others the question whether two millennia of Church teaching can be swept aside, indeed reversed, so easily by today’s Pope. It is not clear, of course, that John Paul II has tried to change Church teaching in a way that binds Catholics. John Cardinal O’Connor thought the Pope had not done so. That must be reassuring for Catholic judges, jurors, legislators, government executives, and those who execute the sentence.

But that is only partly my point. My difficulty has to do with the Church adopting positions that may be taken to be binding on public affairs when it has no special, or sometimes even an adequate, understanding of the subject. If the Pope or the bishops express opinions on such matters, that is certainly their right. But they should be owed no particular deference, either by Catholics or others.

Look at the Pope’s words in Evangelium Vitae: The state “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. Today, however, as a result of steady improvements in the organization of the penal system, such cases are rare, if not practically nonexistent.” (Emphases deleted and added.) Two things are to be noted. First, imprisonment does not exact just retribution for particularly horrible crimes. Death penalty cases involve crimes of almost unbelievable savagery and brutality. Richard Speck, who butchered eight student nurses in their apartment, enjoyed narcotics parties with other inmates. Charles Manson, being bisexual, has found prison no great ordeal. He and his disciples murdered the pregnant Sharon Tate and four others in her home. I argued a case for the government in which the defendant had told friends that he wanted sex with a young girl, went to a public swimming pool, seized a ten-year-old girl, threw her in the back of his pickup truck, drove her through town while she screamed futilely for help, took her to a river, raped her, drowned her, and then bought beer to drink while sharing his happy recollection with friends. If ever a man deserved the death sentence, he did, and he got it.

Life imprisonment does not, in any event, fully protect society. Imprisoned murderers have killed guards and other prisoners. They have been paroled or escaped and killed again. Just two years ago, seven hardened criminals, one of whom was serving eighteen life sentences, escaped from a maximum-security Texas prison. A few weeks later, while robbing a sporting goods store, they killed a police officer, shooting him thirteen times and then driving over his body. The blood of the murderers’ new victims is at least partially on the hands of those who make the execution of such killers impossible.

An additional problem with the Pope’s statement is that it rests upon a prudential judgment that he is no more qualified to make than we are. The Church is not only a spiritual body representing Christ on earth but also a quite human political and cultural institution. As such, it resembles the judicial system in being vulnerable to the tides of the culture, particularly the culture of the intelligentsia. Archbishop Chaput would place the Church’s prudential judgments, influenced less by traditional Christian thought than by current social nostrums, on the same level as pronouncements about faith and morals. He notes that William Buckley did not admire the economics in Pope John XXIII’s encyclical Mater et Magistra and wrote a famous column, “Mater si, Magistra no!” The Archbishop asserted that Buckley was, for that reason, a “cafeteria Catholic.”

This comes close to being intolerable. If the Church does not understand basic economics, it is worse than folly to insist that Catholics must believe what they know to be wrong and which no spiritual authority can make right. The American bishops have held forth in an uninformed manner not only about economics but about nuclear weaponry. Chaput himself has said Catholics have “listened to the world too politely when it lies” about “the death penalty, or our obligations to the poor, or the rights of undocumented workers, or the real meaning of pluralism, or our international responsibilities”; they should have “shouted out the truth.” The Church does not have any monopoly on truth about our obligations to the poor, the rights of undocumented workers (a.k.a. illegal aliens), the real meaning of pluralism, or our international responsibilities. These are matters of prudential judgment and the Church should not attempt to foreclose discussion as if correct answers are known only to the clergy.

These are not matters of concern only to Catholics. My interests as a citizen are diminished if Catholics who would otherwise agree with me feel compelled to vote the other way by a Pope’s pronouncement on issues outside his jurisdiction. The opinions expressed in Evangelium Vitae about the death penalty are to be regretted, because spiritual authority, though it should not, tends to be confused with secular prudential thought. The Pope’s opinion need be accorded only the respect that it deserves on the merits of his argument.

Robert H. Bork
American Enterprise Institute
Washington, D.C.

I once met a man who argued not only that the Bible is historically accurate in every detail, that biblical criticism is wrong, and that the Church is a corruption of the Christian message, but also that one very specific version of the Bible is the only really inspired collection of God’s word—the King James Version.

I remembered him as I read “God’s Justice and Ours.”

In his article, Justice Antonin Scalia says that “the Constitution that I interpret and apply is not living but dead—or as I prefer to put it, enduring.” Justice Scalia is an impressive thinker and a gifted jurist. But on this point, among others, he does not entirely make sense.

Documents like the Constitution endure because they are alive, not dead. One proof of life is their ability to inspire and guide people with permanent principles, while having the flexibility to speak to new circumstances and understandings.

Justice Scalia is right to be wary of those who see the Constitution as a kind of modeling clay in the hands of judicial activists. He’s also right that judges take an oath to uphold and apply the law, whether a particular law offends their religious convictions or not. But many supporters of the Constitution as a “living document” do not believe that “it means what it ought to mean.” They do believe that not even the Framers have a right to a dictatorship of meaning.

The text of the Constitution interacts all the time with the checks and balances of common sense, objective morality, and practical experience—not only in the minds of legislators, but also in the minds of judges. What separates judges from technicians is their ability to reflect on the intent and purpose of the law in the light of a living culture. To suggest that a judge’s religious faith should play no role in this reflection seems certain to ensure that we get schizophrenic judges with two sets of convictions, public and personal.

We’ve heard similar arguments before from political figures like Mario Cuomo and John Kennedy, with unhappy results. And while it’s true that judges and elected officials have very different duties in our public life, the tension between personal conviction and public responsibility is the same. Justice Scalia has raised a vitally important point here, because—as he surely knows—faith, if real, should inform every aspect of a Catholic’s life. What exactly does that mean for a judge? I’d be interested in hearing how he manages the wall of separation in his own life. This deserves more discussion.

I agree with Justice Scalia that it’s no accident that “the modern view that the death penalty is immoral is centered in the West.” But he’s wrong in his understanding of why. First, while Europe may be secular today, its moral pedigree is still largely Christian. Second, much of the twentieth century in Europe is a story of war, genocide, and political repression—one hundred years of state-sponsored violence against the human person in the name of collective ideals. European revulsion for the death penalty is one of the by-products of that pervasive violence. More importantly for Christians, the sanctity of the human person—every human person, including murderers—has been underlined by a century of bloodshed.

Humans learn the hard way, but eventually we do learn. We no longer have slaves. We no longer hang horse thieves. We no longer (intentionally) mistreat the mentally disabled. Moral reflection and development have always been integral to Christian life. Justice Scalia notes that Church teaching against the death penalty is a recent development, and that Scripture and Catholic tradition have always supported the legitimacy of capital punishment. Of course, that’s true. But that doesn’t preclude the Church from deepening her understanding of when or if this punishment should be applied. When Justice Scalia calls for “new staffers at the Congregation of Prudence in the Vatican,” he not only diminishes his own credibility with unseemly sarcasm, he also reveals his own flawed understanding of who the Church really is and why she teaches with authority. In fact, in her teaching on this issue, the Church is being exactly who Christ founded her to be—a mother who observes, reflects, and then guides us in the light of revealed truth and lived experience.

In a practical sense, that’s what Catholic tradition is—the wisdom gained from hearing the truth and then living it in the world, generation after generation. Revelation ended with the death of the last apostle, but our understanding and application of God’s living word did not. This is why Catholic doctrine, unlike Justice Scalia’s sense of the Constitution, is not dead.

Archbishop Charles J. Chaput, O.F.M. Cap.
Denver, Colorado

Antonin Scalia is a man of justice and of faith. It is not surprising, therefore, that he would take both seriously and labor mightily to reconcile them. His comments in “God’s Justice and Ours” could not be more timely. Our nation is under attack from terrorists who hate us simply because of who we are. To effectively respond—militarily and otherwise—we therefore need to have a clear idea of exactly what it means to be American. Rightly, I think, President Bush has described us as aligned with the forces of good, rather than evil, but insofar as the attackers also made claim to this alignment, some ascertainment of morality and the good and its relationship to lawful authority is indispensable.

If ever there was someone capable of this, it is Justice Scalia. Yet one would not know this from some of the public reaction to his remarks at the Chicago Divinity School that became the basis of his essay in First Things. There, by elaborate reasoning, Justice Scalia determined that the death penalty is neither intrinsically immoral nor contrary to Catholic teaching. If it were, he speculated, American Catholics would be ineligible to go on the bench in all jurisdictions imposing the death penalty. Mysteriously, liberal secularists somehow deduce from these comments a covert desire to subvert democracy in favor of the “divine right of kings” or at least judges. Many Catholics were also puzzled, perceiving tension between the Justice’s words and the Holy Father’s instruction in encyclical writing that the death penalty should be rarely, if ever, applied.

Putting aside for the moment what the Catholic Church teaches on the death penalty, Justice Scalia is surely correct that trial judges and jurors imposing a capital sentence are the direct agents in capital sentencing, and therefore must take moral responsibility for any such sentence imposed. The Justice may also be right that appellate judges materially cooperate in it, though recent rulings of the Supreme Court may mitigate that since the jury is now clearly charged with finding all of the essential facts for imposing the penalty. Be that as it may, Justice Scalia proclaims that he “could not take part in that process if [he] believed what was being done to be immoral.”

So is it? Reasoning from canonical instruction that the encyclical Evangelium Vitae in which this subject is briefly taken up by the Holy Father is not binding in the same sense as the Church’s teaching on abortion, Justice Scalia finds within the longer tradition of the Church at least two justifications for capital punishment: first, as a necessary defense of society where that is otherwise impossible (something the Holy Father admits, but only narrowly), and second, as a just societal retribution lawfully imposed.

For Justice Scalia, society has greater moral latitude than does an individual in matters of life or death. The question is, Why? It cannot be simply a matter of aggregate numbers or majority will, since as the Holy Father has reminded us time and again, democracy unattached to objective moral standards all too easily degenerates into simply another form of totalitarianism. Hearing an affirmation of this from Justice Scalia is welcome, since his repeated denunciations of the notion of a “living constitution”—e.g., one that reflects the predilections of living justices, rather than constitutional text—has sometimes led even his admirers (like me) to wonder if he doesn’t place too much faith in positivism. As we know from slavery, the positive or legal authorization of a practice doesn’t make it right.

No, American democracy has greater moral authority, writes Justice Scalia, since ultimately the authority exercised by the people thereunder is derived from God. Of course, currently—or at least out in California and the rest of the Ninth Circuit—pledging allegiance to this nation “under God” is momentarily unconstitutional. Yet Justice Scalia knows better, reminding us of Justice William O. Douglas’ opinion in the 1940s that “we are a religious people, whose institutions presuppose a Supreme Being.”

This is anathema to liberal secularists. Princeton Professor Sean Wilentz, in an overheated essay in the New York Times, proclaimed the notion that governmental authority, democratically exercised, is traceable to God to be an “eccentric” view wholly “rejected” by the framers. Apparently, the Declaration of Independence must be missing from the shelves of the Princeton library. While Prof. Wilentz cites Jefferson for the proposition that individual civil rights do not depend upon an individual’s religious opinions (and of course, they don’t), he overlooks Jefferson’s far different, yet equally important, self-evident truth in the Declaration that “all men are created equal, [and] that they are endowed by their Creator with certain inalienable rights.” What was self-evident to the framers, neither Prof. Wilentz nor the Ninth Circuit in its errant pledge ruling seems capable of grasping; namely, that it is our equality under God that opened our forebears’ eyes to the fact that no single person—be he king or justice—is “divinely” authorized to rule.

A society that is not organized upon the premise of individual right derived from a transcendent God is a society organized upon the feeble notion that rights come only by the grace of whomever happens to have enough raw power to claim to be sovereign. Such a society is one of mere force, whether it is the force of a repressive Taliban or the antebellum states. It is an enormous leap from recognizing the Creator, however, to suppose that Justice Scalia is urging individual submission to the state in the belief that the state can do no wrong. Were that silly proposition Justice Scalia’s point, his repeated reminders to his colleagues that in America it is “We the people”—yes, we, those equally created people—who rule, would make little sense.

Justice Scalia may or may not be right in his interpretation of Catholic doctrine on the death penalty. Like him, I believe there is room for discernment in the penalty’s application, especially in a world where those we fight against are evil—yes, thoroughly evil—because in the name of Islam they have denied the created dignity of innocent human life. Yet for Prof. Wilentz to denounce Justice Scalia as an “opportunist” who wants to impose upon the Constitution “a religious sense” is not to label but to libel.

Numerous cases in refutation could be cited, but perhaps it is enough to merely note Justice Scalia’s dissent in Atkins v. Virginia (2002), where he again holds fast to the Constitution as written, and explicitly decries the majority justices’ reliance upon the views of religious organizations. The Atkins majority claimed that a “national consensus” had emerged to change the constitutional text (although not by the intended constitutional means of amendment, of course, but by judicial intuition) to outlaw the capital sentencing of the mentally retarded. Factually, prior to the Court’s ruling only seven states categorically prohibited the execution of the mentally retarded, which, as Justice Scalia noted, was hardly “a statement of absolute moral repugnance,” let alone consensus. When the Court relied upon the amicus brief of the U.S. Conference of Catholic Bishops against the death penalty as evidence of consensus, Justice Scalia did not seek to impose the views of his fellow religious, but wrote: “The attitudes of that body regarding crime and punishment are so far from being representative, even of the views of Catholics, that they are currently the object of intense national (and entirely ecumenical) criticism.” Too harshly stated for me, but it is hardly a statement that seems calculated to impose “views about government and divinity” upon the body politic, as Wilentz asserts.

In the end, Justice Scalia urges his fellow citizens to resist the effacement of God from American democracy. Freedom of religion permits this, of course; it does not ensure it. The most effective way to combat error with self-evident truth is to bring moral insight to bear upon legislative enactment, and in that exercise of free will among believers and unbelievers alike, do the best we can to find our way. In this, we should not expect Justice Scalia or the Court he sits on to bail us out. He has thoughtfully explained why.

Douglas W. Kmiec
Dean & St. Thomas More Professor
School of Law
Catholic University of America
Washington, D.C.

Justice Scalia’s comments on the death penalty are written from the perspectives of a Supreme Court Justice and practicing Catholic trying to reconcile his varying loyalties to the United States Constitution, the teaching magisterium of the Roman Catholic Church, and the Pope. As a Protestant Christian, I cannot enter into the debate as to which pronouncements of the Roman Catholic Church are binding, as I do not believe that the Roman Church (nor my own church!) possesses the gift of infallibility. However, I do believe that church tradition is a very reliable teacher. Thus, where the Church has generally taught a certain way on a matter over a long period of time in a variety of cultures and historical epochs, it would take an extraordinary justification for myself as an individual, or any sub-group within the broader Christian Church, to claim that Scripture teaches otherwise. From this perspective, official Roman Catholic teaching that is in accord with historical traditions of the Church is highly reliable. What, however, am I to make of recent Roman Catholic pronouncements on the death penalty, which appear out of accord with the practices of every historical Christian civilization, whether Roman Catholic, Protestant, or Orthodox?

I agree with Justice Scalia that both the Old Testament and the New Testament teach that the state possesses the authority to employ death as a form of retributive punishment. I do not find within Evangelium Vitae any explanation as to why this authority would not exist in the contemporary world, nor any explanation of why retribution would not render the death penalty proper for at least some crimes. Thus, as a non-Catholic, I would say that Evangelium Vitae seems to fudge, rather than to contradict, the scriptural and traditional teachings that the state possesses the authority to execute, and that retributive justice can support the death penalty.

However, Pope John II’s prudential argument against the death penalty is intriguing. The death penalty should generally not be employed, he seems to imply, both because it is no longer necessary to the protective function of the state, and also because its use (particularly when unnecessary to protect human life) has the inadvertent cultural impact of furthering the culture of death represented by practices such as abortion and euthanasia.

By contrast, Justice Scalia suggests that the popularity of the death penalty in the United States is a sign that Americans still discern God’s authority over and behind the state; from this perspective maintenance of the death penalty is a helpful antidote to the democratic tendency to forget that God’s authority (rather than the people’s authority) is the ultimate foundation of state authority. Justice Scalia further suggests that the Pope’s judgment, having originated in Europe, be taken as applicable within “secular Europe.” Thus, Justice Scalia implies that this kind of prudential judgment must be localized, since the fac