God’s Justice and Ours

Before proceeding to discuss the morality of capital punishment, I want to make clear that my views on the subject have nothing to do with how I vote in capital cases that come before the Supreme Court. That statement would not be true if I subscribed to the conventional fallacy that the Constitution is a "living document"—that is, a text that means from age to age whatever the society (or perhaps the Court) thinks it ought to mean.

In recent years, that philosophy has been particularly well enshrined in our Eighth Amendment jurisprudence, our case law dealing with the prohibition of "cruel and unusual punishments." Several of our opinions have said that what falls within this prohibition is not static, but changes from generation to generation, to comport with "the evolving standards of decency that mark the progress of a maturing society." Applying that principle, the Court came close, in 1972, to abolishing the death penalty entirely. It ultimately did not do so, but it has imposed, under color of the Constitution, procedural and substantive limitations that did not exist when the Eighth Amendment was adopted—and some of which had not even been adopted by a majority of the states at the time they were judicially decreed. For example, the Court has prohibited the death penalty for all crimes except murder, and indeed even for what might be called run–of–the–mill murders, as opposed to those that are somehow characterized by a high degree of brutality or depravity. It has prohibited the mandatory imposition of the death penalty for any crime, insisting that in all cases the jury be permitted to consider all mitigating factors and to impose, if it wishes, a lesser sentence. And it has imposed an age limit at the time of the offense (it is currently seventeen) that is well above what existed at common law.

If I subscribed to the proposition that I am authorized (indeed, I suppose compelled) to intuit and impose our "maturing" society’s "evolving standards of decency," this essay would be a preview of my next vote in a death penalty case. As it is, however, the Constitution that I interpret and apply is not living but dead—or, as I prefer to put it, enduring. It means today not what current society (much less the Court) thinks it ought to mean, but what it meant when it was adopted. For me, therefore, the constitutionality of the death penalty is not a difficult, soul–wrenching question. It was clearly permitted when the Eighth Amendment was adopted (not merely for murder, by the way, but for all felonies—including, for example, horse–thieving, as anyone can verify by watching a western movie). And so it is clearly permitted today. There is plenty of room within this system for "evolving standards of decency," but the instrument of evolution (or, if you are more tolerant of the Court’s approach, the herald that evolution has occurred) is not the nine lawyers who sit on the Supreme Court of the United States, but the Congress of the United States and the legislatures of the fifty states, who may, within their own jurisdictions, restrict or abolish the death penalty as they wish.

I pause here to emphasize the point that in my view 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 death penalty cases. He has, after all, taken an oath to apply the laws and has been given no power to supplant them with rules of his own. Of course if he feels strongly enough he can go beyond mere resignation and lead a political campaign to abolish the death penalty—and if that fails, lead a revolution. But rewrite the laws he cannot do. This dilemma, of course, need not be confronted by a proponent of the "living Constitution," who believes that it means what it ought to mean. If the death penalty is (in his view) immoral, then it is (hey, presto!) automatically unconstitutional, and he can continue to sit while nullifying a sanction that has been imposed, with no suggestion of its unconstitutionality, since the beginning of the Republic. (You can see why the "living Constitution" has such attraction for us judges.)

The death penalty is undoubtedly wrong unless one accords to the state a scope of moral action that goes beyond what is permitted to the individual. In my view, the major impetus behind modern aversion to the death penalty is the equation of private morality with governmental morality. This is a predictable (though I believe erroneous and regrettable) reaction to modern, democratic self–government.

Few doubted the morality of the death penalty in the age that believed in the divine right of kings. Or even in earlier times. St. Paul had this to say (I am quoting, as you might expect, the King James version):

This is not the Old Testament, I emphasize, but St. Paul. One can understand his words as referring only to lawfully constituted authority, or even only to lawfully constituted authority that rules justly. But the core of his message is that government—however you want to limit that concept—derives its moral authority from God. It is the "minister of God" with powers to "revenge," to "execute wrath," including even wrath by the sword (which is unmistakably a reference to the death penalty). Paul of course did not believe that the individual possessed any such powers. Only a few lines before this passage, he wrote, "Dearly beloved, avenge not yourselves, but rather give place unto wrath: for it is written, Vengeance is mine; I will repay, saith the Lord." And in this world the Lord repaid—did justice—through His minister, the state.

These passages from Romans represent the consensus of Western thought until very recent times. Not just of Christian or religious thought, but of secular thought regarding the powers of the state. That consensus has been upset, I think, by the emergence of democracy. It is easy to see the hand of the Almighty behind rulers whose forebears, in the dim mists of history, were supposedly anointed by God, or who at least obtained their thrones in awful and unpredictable battles whose outcome was determined by the Lord of Hosts, that is, the Lord of Armies. It is much more difficult to see the hand of God—or any higher moral authority—behind the fools and rogues (as the losers would have it) whom we ourselves elect to do our own will. How can their power to avenge—to vindicate the "public order"—be any greater than our own?

So it is no accident, I think, that the modern view that the death penalty is immoral is centered in the West. That has little to do with the fact that the West has a Christian tradition, and everything to do with the fact that the West is the home of democracy. Indeed, it seems to me that the more Christian a country is the less likely it is to regard the death penalty as immoral. Abolition has taken its firmest hold in post–Christian Europe, and has least support in the church–going United States. I attribute that to the fact that, for the believing Christian, death is no big deal. Intentionally killing an innocent person is a big deal: it is a grave sin, which causes one to lose his soul. But losing this life, in exchange for the next? The Christian attitude is reflected in the words Robert Bolt’s play has Thomas More saying to the headsman: "Friend, be not afraid of your office. You send me to God." And when Cranmer asks whether he is sure of that, More replies, "He will not refuse one who is so blithe to go to Him." For the nonbeliever, on the other hand, to deprive a man of his life is to end his existence. What a horrible act!

Besides being less likely to regard death as an utterly cataclysmic punishment, the Christian is also more likely to regard punishment in general as deserved. The doctrine of free will—the ability of man to resist temptations to evil, which God will not permit beyond man’s capacity to resist—is central to the Christian doctrine of salvation and damnation, heaven and hell. The post–Freudian secularist, on the other hand, is more inclined to think that people are what their history and circumstances have made them, and there is little sense in assigning blame.

The mistaken tendency to believe that a democratic government, being nothing more than the composite will of its individual citizens, has no more moral power or authority than they do as individuals has adverse effects in other areas as well. It fosters civil disobedience, for example, which proceeds on the assumption that what the individual citizen considers an unjust law—even if it does not compel him to act unjustly—need not be obeyed. St. Paul would not agree. "Ye must needs be subject," he said, "not only for wrath, but also for conscience sake." For conscience sake. The reaction of people of faith to this tendency of democracy to obscure the divine authority behind government should not be resignation to it, but the resolution to combat it as effectively as possible. We have done that in this country (and continental Europe has not) by preserving in our public life many visible reminders that—in the words of a Supreme Court opinion from the 1940s—"we are a religious people, whose institutions presuppose a Supreme Being." These reminders include: "In God we trust" on our coins, "one nation, under God" in our Pledge of Allegiance, the opening of sessions of our legislatures with a prayer, the opening of sessions of my Court with "God save the United States and this Honorable Court," annual Thanksgiving proclamations issued by our President at the direction of Congress, and constant invocations of divine support in the speeches of our political leaders, which often conclude, "God bless America." All this, as I say, is most un–European, and helps explain why our people are more inclined to understand, as St. Paul did, that government carries the sword as "the minister of God," to "execute wrath" upon the evildoer.

A brief story about the aftermath of September 11 nicely illustrates how different things are in secularized Europe. I was at a conference of European and American lawyers and jurists in Rome when the planes struck the twin towers. All in attendance were transfixed by the horror of the event, and listened with rapt attention to the President’s ensuing address to the nation. When the speech had concluded, one of the European conferees—a religious man—confided in me how jealous he was that the leader of my nation could conclude his address with the words "God bless the United States." Such invocation of the deity, he assured me, was absolutely unthinkable in his country, with its Napoleonic tradition of extirpating religion from public life.

...The current predominance of opposition to the death penalty is the legacy of Napoleon, Hegel, and Freud rather than St. Paul and St. Augustine. I mentioned earlier Thomas More, who has long been regarded in this country as the patron saint of lawyers, and who has recently been declared by the Vatican the patron saint of politicians (I am not sure that is a promotion). One of the charges leveled by that canonized saint’s detractors was that, as Lord Chancellor, he was too quick to impose the death penalty.

I am therefore happy to learn from the canonical experts I have consulted that the position set forth in Evangelium Vitae and in the latest version of the Catholic catechism does not purport to be binding teaching—that is, it need not be accepted by practicing Catholics, though they must give it thoughtful and respectful consideration. It would be remarkable to think otherwise—that a couple of paragraphs in an encyclical almost entirely devoted not to crime and punishment but to abortion and euthanasia was intended authoritatively to sweep aside (if one could) two thousand years of Christian teaching.

I find it ironic that the Church’s new (albeit nonbinding) position on the death penalty—which, if accepted, would have these disastrous consequences—is said to rest upon "prudential considerations." Is it prudent, when one is not certain enough about the point to proclaim it in a binding manner (and with good reason, given the long and consistent Christian tradition to the contrary), to effectively urge the retirement of Catholics from public life in a country where the federal government and thirty–eight of the states (comprising about 85 percent of the population) believe the death penalty is sometimes just and appropriate? Is it prudent to imperil acceptance of the Church’s hard but traditional teachings on birth control and abortion and euthanasia (teachings that have been proclaimed in a binding manner, a distinction that the average Catholic layman is unlikely to grasp) by packaging them—under the wrapper "respect for life"—with another uncongenial doctrine that everyone knows does not represent the traditional Christian view? Perhaps, one is invited to conclude, all four of them are recently made–up. We need some new staffers at the Congregation of Prudence in the Vatican. At least the new doctrine should have been urged only upon secular Europe, where it is at home.

Antonin Scalia is a Justice of the Supreme Court of the United States. This article is adapted from remarks given at a conference sponsored by the Pew Forum on Religion and Public Life at the University of Chicago Divinity School.

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

...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.

...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.

Robert H. Bork

American Enterprise Institute

Washington, D.C.

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."

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.

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.

....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?

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 factors involved are variable rather than universal.

It is interesting that Justice Scalia, of all people, finds that democracy distorts the Christian understanding of the state. Justice Scalia usually advocates a democratic positivism that leaves little room for natural law principles in the interpretation or application of the law. If democracy progressively corrupts the people, as he now implies, then judges will eventually face the prospect of enforcing democratically created norms that are fundamentally immoral. While Justice Scalia would probably find judges more prone to corruption than the people, this new attention to the flaws of democracy suggests the possibility of a tragic flaw in a positivist democratic jurisprudence.

David Smolin

Cumberland Law School

Samford University

Birmingham, Alabama

Regardless of what the Supreme Court has said on the subject of abortion, I think Justice Scalia and I agree that abortion is wrong. But the problem is that while Justice Scalia chooses to separate his personal view from his "job" as a Supreme Court Justice when writing or speaking about abortion, he doesn’t carry this personal philosophy forward consistently.

Justice Scalia claims that a judge who believes the death penalty is immoral should resign. But what about the judge who believes that abortion is an immoral act of killing an innocent person? Shouldn’t that judge resign as well? Why is one type of execution so profoundly complex that personal beliefs should determine who remains and who leaves the bench, while the other is not?

I ask this question hypothetically, of course, because we know that the laws of the United States permit capital punishment, and they also permit abortion (though the latter is never described by judges as killing innocent persons). Long ago the Justices of the Supreme Court chose to avoid addressing the humanity of the child before birth. And to this day a majority of Supreme Court Justices have persisted in the sham. But for the judge who understands the fact that a person is a person at the very beginning of his life, isn’t it equally incumbent upon him, if not more so, to act in conformity with those beliefs and resign from the bench?

My second point is far less ominous but no less troubling. Justice Scalia argues that our nation is basically a democracy that reveres God and chooses to remind itself of His power by slogans such as "In God we trust." I think Justice Scalia is suggesting that the state’s authority derives from God, and so the state has the authority to deprive citizens of their lives for the sake of justice. How odd.

The United States, by judicial fiat, protects acts that destroy innocent people on a scale of more than four thousand surgical abortions per day. Clearly a system of so-called justice that permits such acts has no moral authority, nor can it legitimately claim a trust in God. For as Pope John Paul II teaches in Evangelium Vitae (§5), justice can be found only when every human life is respected, protected, loved, and served.

Justice is a virtue, and it cannot be exercised by a system that condones the mass killing of an entire class of people. The Holy Father has called such a system a "tragic caricature of legality." He asks, "How is it still possible to speak of the dignity of every human person when the killing of the weakest and most innocent is permitted? In the name of what justice is the most unjust of discriminations practiced: some individuals are held to be deserving of defense and others are denied that dignity?" (Evangelium Vitae §20)

Pope John Paul II did not rescind the traditional teachings of the Church regarding the use of the death penalty. The Catechism of the Catholic Church and the Pope affirm that the state has the right to exact the death penalty. Nations have the right to just war and individuals have the right to self-defense. What the Holy Father does teach, and what the Catechism confirms, is that one must take into account the conditions of modern society, which do make it harder and harder to argue that a particular act of capital punishment is circumstantially necessary.

Judie Brown

President

American Life League, Inc.

Stafford, Virginia

Antonin Scalia replies:

Apart from affirming that the Church has no special expertise on the subject, I take no position on the purely prudential debate—whether, although it is entirely moral to impose the death penalty, it is nonetheless a bad idea to do so. I do reject, however, two arguments in favor of abolition that have a certain theological or ecclesiastical cast to them. First, I do not agree with Prof. Long’s point that state permission of abortion destroys "the primary medicinal end of the death penalty—to manifest a transcendent norm of justice." This all-or-nothing-at-all approach to transcendent justice seems to me misguided. The transcendent norm that it is wrong to kill a walking-around human being can be manifested and affirmed even though the transcendent norm that it is wrong to kill a fetus is not—just as, by the criminal laws of most Western countries, the transcendent norm that a man can have only a single wife is manifested and affirmed, even though the transcendent norm that marriage is indissoluble is not. You do what prudence allows, given the divergence of views within society regarding what is a transcendent norm.

I also disagree with the "seamless garment" or "culture of death" argument, which links the death penalty with approval of abortion. Anyone who thinks that the elimination of capital punishment will give the abortion-prone woman second thoughts has to be delusional. The "pro-choice" American believes as much as anyone else that life-out-of-the-womb is sacred; sparing the life of a double axe-murderer is unnecessary to drive home that point. Indeed, in my experience the abortion-rights advocate, usually a liberal, is more likely to abhor the death penalty than the abortion opponent, usually a conservative. What the "pro-choice" American does not believe is that a human fetus is as fully a human life as Uncle Charlie. Eliminating the death penalty does not remotely address that issue.

Do Laws and Standards Evolve? Douglas W. Phillips, Esq. Holmes and his contemporaries laid the foundation for legalized abortion, no-fault divorce, the legalization of homosexuality, and the rejection of the Framers' vision for Constitutional interpretation. Today, most courts have embraced an evolving standard for Constitutional interpretation, rejecting the notion that the Constitution must be interpreted in light of the meanings intended by the Framers.

WallBuilders | Resources | Evolution and the Law:"A Death ... Perhaps the first individual successfully to champion this belief was Christopher Columbus Langdell (1826-1906), dean of the Harvard Law School. Langdell reasoned that since man evolved, then his laws must also evolve; and deciding that judges should guide the evolution of the Constitution, Langdell introduced the case law study method under which students would study the wording of judges’ decisions rather than the wording of the Constitution.

Under his case-law approach, history, precedent, and even many of the principles specifically enshrined in the governing documents, were deemed hindrances to the successful evolution of society. As John Dewey summarized:

The belief in political fixity, of the sanctity of some form of state consecrated by the efforts of our fathers and hallowed by tradition, is one of the stumbling blocks in the way of orderly and directed change. [216]

Harvard Professor Steven Wise summarizes this radical revolution in legal theory occasioned by the adoption of Darwin’s principles:

"To understand the strong normative appeal of evolutionary models, one must first appreciate that American law, like biology at the time of Darwin, faces the problem of providing a theory of creation which does not invoke a Supreme Being." E Donald Elliott, "The Evolutionary Tradition in Jurisprudence," 85 Columbia Law Review 38, 91 (1985). Elliott, who believes that the manner in which law is affected by the ideas that it routinely borrows from other disciplines has been largely unexplored, sets sail by chronicling how the Darwinian idea of evolution has affected the jurisprudential work of such legal scholars as Holmes, Wigmore and Corbin. Id. See also Jan Vetter, The Evolution of Holmes, Holmes and Evolution, 72 Cal. L. Rev. 343, 362 (1984) ("Holmes’ The Common Law is first of all an account of legal change, and its object in this respect is to exhibit the workings of Darwinian evolution in law"). Evolutionary jurisprudence was often shunned during the middle half of the twentieth century due to that period’s association of evolution with Spencer’s racist and reactionary Social Darwinism. Elliott, at 59, 76. It is shunned no longer. Id. See Roger D. Masters, Evolutionary Biology, Political Theory and the State, in Law, Biology & Culture—The Evolution of Law 171 (Margaret Gruter & Paul Bohannon eds., 1983). [225]

Probe Ministries - Capital Punishment
The Bible's Teaching on Capital Punishment
The Bible and Capital Punishment
On Capital Punishment! - a collection of links plus Biblical references
Issues of Life: Capital Punishment
Pro-Death Penalty.com
The New American - Issues in Focus - Capital Punishment

Freeper Help Needed: My Child's Killer Is Up For A 6th Parole Hearing

On April 11, 1989, 16 year old Jeremy Peter Flachbart a learning disabled student was brutally beaten to death by Terry Joe Windham (who was on probation for burglary and vandalism), who decided he wanted to commit murder to see what it felt like to kill. Jeremy, was on his way home from school when he was ambushed and beat to death with a 2 foot section of 4x4 fence post by Windham. After hitting Jeremy once from behind, Jeremy went down and Windham hit him 10 more times, after the 10th blow Jeremy groaned and Windham hit him 5 more times for a total of 16 blows.

Windham, went to a local game room to brag about his vicious act of murder, to his younger brother and some friends; he then took them to view Jeremy's body. While the police were investigating the scene he was on the sidelines watching, bragging, laughing, and making threats that if anyone told on him he'd kill them too. He was arrested on the scene, confessed, and was charged with 1st degree Murder; plea bargained down to 2nd degree Murder; was sentenced to 20 years. While he was in jail awaiting trial he made threatening phone calls to students. He will have served a little over 11 years of his sentence, he will have a 6th parole hearing on March 12, 2003 He was sentenced 20 years on 4/11/89. He became eligible for a first parole 3/16/91. (The murder happened on 4/11/89 but because of the way sentencing is figured in Tennessee he was sentenced on the day the crime happened).

Posted on 02/25/2003 3:39 PM EST by GailA

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