Skip to comments.Robert Bork on Scalia & Capital Punishment
Posted on 04/04/2006 4:09:13 PM PDT by Conservative Coulter Fan
Justice Scalias 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 Popes 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 unconstitutionalWilliam Brennan, Thurgood Marshall, and Harry Blackmun, for examplewere, 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 Amendments 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 Scalias position has been subjected to a vigorous attack by Denver Archbishop Charles Chaput. Arguing that if we say were 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 dont mean that abortion and the death penalty are identical issues. Theyre not, and they dont have equivalent moral gravity. But the impulse to pick and choose what were 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 yearsuntil now. I leave to others the question whether two millennia of Church teaching can be swept aside, indeed reversed, so easily by todays 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 OConnor 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 Popes 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 Popes 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 Churchs 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 XXIIIs 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 Popes 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 Popes opinion need be accorded only the respect that it deserves on the merits of his argument.
This is a selection from 'Antonin Scalia and His Critics: The Church, the Courts, and the Death Penalty'
Well written essay by Robert Bork and right on the money. He wrote this in 2002. The interesting thing is he joined the Catholic Church the following Easter.
Excellent piece by a new Catholic Robert Bork.
Bork fired a bullseye; death penalty is a matter of prudential judgment, abortion is not. Tying the death penalty to abortion was a clever ploy by liberal "Catholic clergy" to give cover to pro-abort Catholic democrat politicians who then supposedly became morally equivalent to those who accepted capital punishment.
I hope this isn't a trick question, but I'd say the pro-abortion and anti-death penalty side of your family is also opposed toppling Baathist dictatorships and fighting Islam-fascists in the Middle East.
Not at first. All the libs in their congregation changed their minds.
Probably so CCF but there are some of us who can accept capital punishment as Catholics yet also feel this war was probably not a good idea. It was and is a matter of prudential judgment and it doesn't seem right to ask American boys to die for Muslims. Going into Afghanistan after Taliban was one thing, but this seems to be a can of worms.
The worst threat to liberty and life in this country is from the out of control courts, including the Supreme, not from Muslims. Think about it: more deaths from Roe v wade than from Muslims!! More assinine decisions from the Court: eminent domain, for example. W's political capital is best invested in decent judges; the dividends will pay for years.
"All the libs in their congregation changed their minds". I hope they picked better ones.
My God, I've never heard Bork utter something so stupid in all my life!
1. The Catholic Church cannot make JP2's opinions against the death penalty doctrine! Doctrine must be eternal and infallible. The Pope has no authority to define as doctrine that which contradicts previous popes, nor that which is temporal prescription.
2. If there was an alternate universe where objection 1 did not exist, Scalia STILL would have no reason to allow the Pope's decision to sway his vote. The law is the law, and Catholic doctrine would hold that Scalia would be bound to uphold the law as a judge. As a LEGISLATOR he would be bound to vote against the death penalty -- in this alternate reality -- as part of his moral discretion, but that is a completely different matter.
3. Pope John Paul II made abundantly clear, with then-Cardinal Ratzinger authoring the statement, that the Catholic Church's position on the death penalty was based on the assertion that it did not seem an efficacious response to the present circumstances, given that the rule of law was not presently threatened. Basing it on an evaluation of circumstances of which the Pope is inexpert establishes that those who are expert must exercise their own judgment.
I might add that since that formulation, the West has been targeted by jihadists with the explicit purpose of threatening the rule of law. Whether or not the Pope has recognized the fact, the current situation is exactly that which Pope John Paul II declared merited the death penalty: the need to preserve the rule of law from disorder.
Whoa! Whoops... Bork was representing an opinion he was about to shoot down!
I've recently been expounding on abortion on other threads just recently and I decry what I see has a serious moral crisis given that abortion is parallels child sacrifice of ancient times or the holocaust in modern times. As for the war in Iraq, I've haven't been fully supportive of one key aspect, which is nation building...as I've said, U.S. citizens are basically the primary source of revenue for the Iraqi government...we're paying them billions to drag them into the 20th, and then 21st century.
"the Popes call for the virtual abolition of the penalty in Evangelium Vitae."
He's referring to a pope isn't even pope anymore. What John Paul II said about the death penalty now carries no more weight than Pius V, Pius X and Pius XII. On the other hand, future Pope Benedict XVI wrote as recently as two years ago that there is a legitimate diversity of opinion on war and the death penalty, but not for abortion and euthanasia.
"the West has been targeted by jihadists with the explicit purpose of threatening the rule of law."
And Benedict XVI seems to understand the Islamic threat better than John Paul II. Benedict is the right pope for this time.