Column Fault theology, strange jurisprudence
By ROBERT F. DRINAN
When the University of Chicago
Divinity School, in connection with the Pew Forum on Religion and Public Life,
planned a conference on religion and the death penalty someone invited Supreme
Court Justice Antonin Scalia. Everyone was more than a bit surprised when he
came. By a long-followed tradition members of the Supreme Court do not speak up
on topics that might come before their court.
Justice Scalia stated unequivocally that he disagreed with the
position of the pope and the Catholic church on the death penalty. He also
startled the conference by asserting that he and any other Catholic judge who
concurred with the pope on capital punishment would be obliged to resign from
the bench. He said: The choice for the judge who believes the death
penalty to be immoral is resignation rather than simply ignoring duly enacted
constitutional laws and sabotaging the death penalty. He has, after all, taken
an oath to apply those laws, and has been given no power to supplant them with
rules of his own.
In addition, Scalia claimed that since the Holy See has not
condemned the death penalty ex cathedra it is not binding. The faulty theology
in that statement is clear to everyone.
Sometime after the Chicago conference Scalia reaffirmed his
position on the death penalty. Responding to a question after a lecture on Feb.
4 at Georgetown University, Scalia cited St. Pauls Letter to the Romans
(13:1-7) asserting that the state was invested with divine authority and must
be obeyed. Scalia went beyond this and claimed that the abolition of the death
penalty all over Europe is symptomatic of a general loss of religious
faith. He continued by claiming that the more Christian a country
is, the less likely it is to regard to the death penalty as immoral.
Scalia also rejected the view of Cardinal Avery Dulles, also
present at the Chicago conference, who explained and agreed with the new
doctrine of the Holy See and the Catholic catechism on the death penalty.
Scalia brushed off the catechism by snidely asserting that it is just the
phenomenon of the clerical bureaucracy saying, Yes, boss.
Scalia rejected the generally accepted doctrine of an evolving
Constitution by claiming that if one accepts that idea, you dont
have a Constitution at all. Under his interpretation the prohibition of
cruel and unusual punishment in the Eighth Amendment would mean
only what it was taken to mean in 1791 when the Bill of Rights was
ratified.
Scalia on a panel of four at Chicago claimed that in his judicial
capacity he was neither for nor against the death penalty. But many observers
would say that in his opinions on the death penalty he has resisted any
liberalization. His opinions state in essence that the issue should be returned
to the states. He also argued vigorously that individuals under the age 18 at
the time of a crime can be executed by the state. He is also not inclined to
exempt the retarded from the ultimate penalty. Nor does he think that the court
should look to international practice when it interprets cruel and
unusual punishment. World law almost everywhere gives a broader meaning
to the idea that the government may not engage in cruel, abusive or degrading
treatment or punishment.
Scalias curious position on the death penalty and the
alleged duty of a Catholic judge to resign if he agrees with the church on this
issue was analyzed and rejected by a Scottish Catholic judge, Aidan
ONeil, in the Feb. 23 issue of the London Tablet. ONeil
points out that the European consensus on abolishing the death penalty, rather
than being a sign of general loss of religious faith, arose after
World War II, the Nuremberg trials and a re-evaluation of the previously
unquestioned rights of lawful authorities over life and death. The Nazi
legal system blatantly did not protect the innocent from death,
ONeil wrote. New legal limits were therefore set against the
state. In the mid-1990s Russia dropped the death penalty in order to join
the European Union.
It is arguable that the death penalty now violates customary
international law that is the moral and legal consensus of the vast majority of
nations. China is another large nation that still uses capital punishment. That
nation executes an average of four a day.
Scalias position on the death penalty is disappointing --
especially since the defense of his position seems to be incoherent. An op-ed
in the Washington Post by a sophomore at Georgetown University rebuked
Scalia for the answer he gave in response to her question at a lecture at
Georgetown. She did not call Scalia a cafeteria Catholic, but her
comment suggested as much.
Scalias strange position on the death penalty will be one
more topic taken up in the never-ending stream of law review articles
criticizing his jurisprudence and his fixations on certain issues.
The Catholic churchs position is so strong and firm that it
is not likely to be changed. The bishops offered no comment on Scalias
statements.
But a few days after Scalias declarations at Chicago and at
Georgetown, the Catholic Campaign for Human Development, an arm of the bishops,
gave $530,500 to 16 Catholic organizations that seek legal repeal of the death
penalty.
Jesuit Fr. Robert Drinan is a professor at Georgetown
University Law Center. His e-mail address is
drinan@law.georgetown.edu
National Catholic Reporter, April 5,
2002
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