This is great, CCF.
I owe you at least one cup of Starbucks best.
I'll post a response to this
In the March 19, 2002 issue of The National Catholic Register, U.S. Supreme Court Justice Antonin Scalia responded to letter to the editor that appeared in the February 17-23 2002 issue that took him to task regarding his dissent from the teaching on the death penalty contained in Pope John Paul II's encyclical Evangelium Vitae.
I found his response shocking in that it demonstrates a fundamental ignorance of not only the teaching of Evangelium Vitae on capital punishment and traditional Church teaching on capital punishment as a whole, but also (and I think most importantly) the degree of assent that the faithful owe to magisterial teaching.
Below is a point by point analysis of some of his comments.
I wish to say from the outset that I do not enjoy making such criticism of someone who I think is the most eminent Justice on our nation's most august court. He, Justice Clarence Thomas and Chief Justice Rehnquist have done much to fight the judicial activism that has infected the court. But when someone who is not only regarded as a great Justice, but also as a great Catholic, publicly errs on such fundamental points of Catholic theology, it cannot go by without comment.
"I am being a jurist when I ask whether the performance of my job (I participate in imposition of the death penalty) is forbidden by authentic Catholic doctrine."
Here, Justice Scalia is absolutely correct. One does not check his Catholic faith at the door of his workplace, especially when that workplace is the most powerful legal institution in the world whose decisions have real impact on real lives.
"Or do you think that authentic moral imperatives announced by the Church have no real-life consequences?"
Here again he is correct. As I myself am wont to say, if one does not see the truth of the Catholic faith in real life circumstances, he doesn't see it all.
"Perhaps so, because I cannot imagine any other explanation for your acknowledging that disagreement with Evangelium Vitae is permissible, while simultaneously criticizing me for voicing such dissent...."
Before we can determine to what extent, if at all, we can dissent from this encyclical, we have to understand what it really says. As we will soon see, Justice Scalia doesn't.
"...in response to a student at Georgetown who asked (quite reasonably) "How, as a Catholic judge, can you participate in the process of imposing the death penalty, which the Church says is immoral?"
The question may have been asked in a reasonable tone and the questioner may have been sincere, but its premise is erroneous.
"You say that my response - to the effect that I do not believe immorality of the death penalty to be authentic Catholic doctrine - was "an example of a powerful man persuading a crowd of people that the Church is wrong."
He is right again when he says that the immorality of the death penalty (at least in the abstract) is not authentic Catholic doctrine. Thus far, he is in agreement with Evangelium Vitae.
"What was I supposed to say? "I am a judge, not a theologian"?
Given the lack of understanding Justice Scalia demonstrates in this letter of basic moral theological principles, particularly in regards to this issue, such a response would have saved him a lot of face.
"(In any case, I was of course not asserting that the Church was wrong, but that the Church in fact teaches the opposite of what recent, non-ex cathedra, pronouncements have said.)"
This parenthetical remark fails "Theology 101" on two grounds. The first of which is that there is a conflict between the teaching in Evangelium Vitae and perennial Church teaching. Evangelium Vitae in no way teaches that the State does not have the right to impose Capital Punishment on those guilty of the most serious crimes commensurate with its grave duty to protect the common good. I will explain this necessary condition more fully when I expose Justice Scalia's misunderstanding of St. Paul.
He then blunders badly when he falls for the "if it is not defined ex-cathedra it is not binding" error. He would do well to read the following from Vatican II's Dogmatic Constitution on the Church:
In matters of faith and morals, the bishops speak in the name of Christ and the faithful are to accept their teaching and adhere to it with a religious assent. This religious submission of mind and will must be shown in a special way to the authentic magisterium of the Roman Pontiff even when he is not speaking ex cathedra; that is, it must be shown in such a way that his supreme magisterium is acknowledged with reverence, the judgments made by him are sincerely adhered to, according to his manifest mind and will. (Lumen Gentium 25 Emphasis Added)
Also Pope Pius XII taught:
Nor must it be thought that what is expounded in Encyclical Letters does not of itself demand consent, since in writing such Letters the Popes do not exercise the supreme power of their Teaching Authority. For these matters are taught with the ordinary teaching authority, of which it is true to say: "He who heareth you, heareth me" (Luke 10:16); and generally what is expounded and inculcated in Encyclical Letters already for other reasons appertains to Catholic doctrine. (Encyclical Letter Humani Generis #20 August 12, 1950)
"Perhaps you do not appreciate the moral dilemma that the new teaching has forced upon Catholic judges, prosecutors and jurors because you do not understand the new teaching."
This is no "new teaching." It is a fuller explanation of what the Church has always taught and is applied to modern circumstances. If this "new teaching" is a departure from what the Church previously taught infallibly, and by logical extension wrong, as the good Justice asserts, then it should pose no moral dilemma for Catholic judges, jurors, prosecutors, or elected officials for that matter. It is Justice Scalia who doesn't understand this teaching and is perhaps projecting his difficulty here as a moral dilemma for others. If anything, this "new teaching," as he is wont to call it, should actually relieve them of such dilemma (if there is one to begin with) because it sets out more clearly what the Church actually teaches on this matter, thus giving them a better understanding of the moral obligations that weigh on their decisions. Should they not have this clearer understanding as they assume their grave duty as not only as Catholics, but also as citizens?
If the moral imperatives announced by the Church have the real life consequences that Justice Scalia correctly asserts, would not one of those consequences be that their decisions, especially one as weighty as to whether or not to put someone to death, have a significant effect on society? And should not this effect factor into such a decision?
As I am sure the Justice is well aware, the questioning of the morality of capital punishment originated as much in the secular world as the Church. The rather recent development of Church teaching on the matter is, to a great extent, a response to those questions:
On this matter [the death penalty] there is a growing tendency, in both the Church and civil society, to demand that it applied in a very limited way or even that it be abolished completely. The problem must be viewed of the context of a system of penal justice more in line with human dignity and thus, with God's plan for man and society. (Evangelium Vitae #56)
"The encyclical says that the death penalty is only justified - only moral - "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 very rare, if not practically non-existent." In other words, the death penalty is rarely, if ever, morally permissible."
Here, Scalia is mixing apples and oranges. He apparently cannot distinguish between a doctrinal teaching and an opinion that is not germane to faith and morals per se.
Before we see exactly how this is so, let's look at the pertinent passage from Evangelium Vitae addressing the subject at hand:
The primary purpose of the punishment which society inflicts is "to redress the disorder caused by the offense." Public authority must redress the violation of personal and social rights by imposing on the offender an adequate punishment for the crime, as a condition for the offender to regain the exercise of his or her freedom. In this way authority also fulfills the purpose of defending public order and ensuring people's safety, while at the same time offering the offender an incentive and help to change his or her behavior and be rehabilitated. It is clear that, for these purposes to be achieved, the nature and extent of the punishment must be carefully evaluated and decided upon, and 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. (Evangelium Vitae #56)
Here is the extent of the teaching of Evangelium Vitae viz. that the state's right to inflict capital punishment is dictated by the purpose of punishment, which is delineated by what is necessary "to redress the disorder [which would include alleviating any further threat] caused by the offense." Theologian Cardinal Avery Dulles takes the position that the necessary defense of society includes vindication of the moral order. This would stand to reason, since the wound to the moral fabric of society inflicted by the offense adversely affects its safety proportionately. I agree with his Eminence here and it seems so does Evangelium Vitae:
In any event, the principle set forth in the new Catechism of the Catholic Church remains valid: "If bloodless means are sufficient to defend human lives against an aggressor and to protect public order and the safety of persons, public authority must limit itself to such means..." (ibid emphasis added)
While the public order and the moral order may not be identical, they are interdependent.
Today however, as a result of steady improvements in the organization of the penal system, such cases are very rare, if not practically non-existent. (ibid)
This statement is the Pope's opinion as to the state's ability to protect society without resorting to lethal means, and therefore not part of the teaching itself. Justice Scalia again errs badly by trying to include this statement as part of the teaching of Evangelium Vitae. First of all, it is clear, based upon the way this statement reads, that it is an expression of an opinion, having no necessary connection with the doctrine itself. As a jurist, Justice Scalia should know that the Church has no competence to authoritatively decide whether or not, or to what extent, the state is able to protect society by non-lethal measures. That is left to the competence of those responsible for the administration of criminal justice for any given state or nation. The Pope's authority is restricted to setting the moral parameters within which the state must make its determination.
"This represents a fundamental change from the (infallible) universal teaching of the past 2,000 years, because it proceeds from the premise that the only justifiable purpose of the death penalty is to "defend society" in the manner that prisons defend it - that is, to disable the offender and deter future offenders. "
Here Justice Scalia argues against his own criteria stated above (i.e. ex-cathedra pronouncement) about as to what constitutes binding teaching. You will find no ex-cathedra pronouncements on the death penalty, or any other moral teaching for that matter. These teachings are binding by virtue of the universal ordinary magisterium. Evangelium Vitae is an encyclical. And encyclicals do require assent, as Pope Pius XII points out in the statement I quote above, because they have the character of ordinary teaching authority based on the words of Jesus Himself, "He that hears you, hears me. He who rejects you rejects me and the one who sent me." (Lk. 10:16) Justice Scalia has the same obligation to submit his private judgment as to the correct understanding of Tradition to ecclesiastical authority, especially that of the pope, as any other Catholic. This is a fact that he had better take seriously.
Now in submitting our own judgment to the Church, we do not renounce our right (I would go so far as to say duty) to understand for ourselves, to the best of our ability, how the Church's interpretation is indeed the correct one. Such submission safeguards the private judgment of even the most intelligent among us from being taken in by ideas that are fundamentally unsound--like those adopted by Justice Scalia.
From this we must conclude that since the ordinary teaching authority demands such adherence, it is self-consistent, despite seeming appearances to the contrary. This would put lie to the claim of a fundamental change "from the (infallible) universal teaching of the past two thousand years" posited by Scalia.
I'm curious as to how Scalia would argue how John Paul II's teaching is a departure from the following from the Roman Catechism, published by the Holy See shortly after the end of the Council of Trent in 1566:
Another kind of lawful slaying belongs to the civil authorities, to whom is entrusted power of life and death, by the legal and judicious exercise of which they punish the guilty and protect the innocent. The just use of this power, far from involving the crime of murder, is an act of paramount obedience to this Commandment which prohibits murder. The end of the Commandment is the preservation and security of human life. Now the punishments inflicted by the civil authority, which is the legitimate avenger of crime, naturally tend to this end, since they give security to life by repressing outrage and violence. Hence these words of David: In the morning I put to death all the wicked of the land, that I might cut off all the workers of iniquity from the city of the Lord. (Roman Catechism Fifth Commandment Execution of Criminals emphasis added)
Notice that the Tridentine Catechism lists two reasons for the just use of the death penalty, to punish the guilty and protect the innocent. Also, in recognizing that the just use of capital punishment is not only not a violation of, but "an act of paramount obedience" to the Fifth Commandment, it states that "preservation and security of life" is the end of the Commandment. John Paul II just takes the next logical step, as popes are wont to do.
Seeing as how Justice Scalia is confused about some of the more elementary points of Catholic doctrine and the degree of assent owed, it is not surprising that he is unable to see how that doctrine develops. While what is taught in a later age may not look identical to what was previously taught, it is organic to it, as the comparison between the Tridentine Catechism and E.V. clearly demonstrates. Such development of doctrine is propelled by the challenges posed to it by a given age, which can take many forms. In the case of the death penalty, the questioning of its use was prompted by the development of modern penal systems that are better able to achieve the purposes of punishment for such crimes without resort to lethal means. To wit, in ages past, the penal systems were not designed and therefore not able to humanely incarcerate offenders long term.
Perhaps I am reading something into Justice Scalia's remarks (i.e. " in the manner that prisons defend it) that is not there, but I think he takes issue with the pope's trust in the ability of modern penal systems to protect society by bloodless means. Such a disagreement, as I pointed out above, is a legitimate position from the perspective of Catholic moral teaching, since the Church has no authoritative competence in deciding this particular issue. As a jurist who holds a seat on the highest court in the most powerful country in the world, this is an area that Justice Scalia can definitely speak competently on. I think that he has a right and a duty to make his views on the effectiveness of penal systems known to Church authorities and Church authorities, likewise, have a duty to listen. But it is unbecoming of a faithful son of the Church to publicly call into question the pope's interpretation, expounded in an encyclical letter, of the traditional Church teaching regarding the moral use of Capital Punishment, whereas an act of obedience here would save much confusion and embarrassment.
"Prior teaching, from St. Paul forward, was that retribution is a valid objective."
Justice Scalia seems to be confused as to everything retribution entails. He seems to be laboring under the idea that it is a "tit-for-tat" "eye-for-an-eye" system of justice. Retribution includes what is needed to heal the wound caused by an offense.
"Whereas, St. Paul says, individual Christians must "give way to wrath," the government "carries the sword" as "the minister of God to execute vengeance upon him that doeth evil."
This playing Scripture off against papal teaching, as Justice Scalia is doing here, reflects not a Catholic way of thinking, but that of a Protestant. It is true that governments "carry the sword," as Justice Scalia, citing St. Paul, points out. It is, of course, within the competence of the state to decide within the moral parameters defined by the Church, whether or not to execute an offender guilty of a serious crime. It is only once those conditions have been satisfied that Christians "must give way to wrath."
The state not only has the right, but the duty, to execute God's vengeance on evil-doers. But the operative word here is "God's," not man's, vengeance. God exercises His wrath for the good of His people, not for the purposes of self-satisfaction. Without understanding this, the God of the Old Testament looks like a bloodthirsty, murderous, and genocidal deity, as opposed to being a God who is "slow to anger abounding in kindness"(Ps.103:8). In other words the state, in deciding whether or not to execute, must do so with a view to good of society, not to satisfy a desire for a payback.
To be sure, a similar flaw in logic exists on the other end with those who call for an end to capital punishment on the basis of a distorted sense of mercy. Such wrongful, albeit understandable, desires for revenge are what motivate many of those who support the death penalty. This is not, however, the criteria by which we can judge whether or not someone should be put to death.
In the days leading up to the execution of Timothy McVeigh, we saw such an emotionalism that smacked of barbarism when his execution was anticipated with glee by those who are otherwise very clear thinking people. This plays right into the hands of those who promote the error that governments need to govern according to popular pushes without regard to moral limits.
But the next time Justice Antonin Scalia wants to publicly take issue with the pope over an interpretation of a traditional Church teaching expounded in an encyclical (which as a Catholic layman, he has no business doing in the first place), he ought to at least better familiarize himself with both the encyclical and previous teaching. His dissenting opinion of Evangelium Vitae on capital punishment shows not only a lack of obedience to divinely established authority, but also an embarrassing lack of understanding of Catholic teaching.
From "The Lidless Eye Inquisition"