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Fault theology, strange jurisprudence


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. Paul’s 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 don’t 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.

Scalia’s 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 O’Neil, in the Feb. 23 issue of the London Tablet. O’Neil 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,” O’Neil 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.

Scalia’s 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.

Scalia’s 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 church’s position is so strong and firm that it is not likely to be changed. The bishops offered no comment on Scalia’s statements.

But a few days after Scalia’s 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