E. J. DIONNE JR. (New York Times Syndicated Columnist): Posted on 06/24/2002 7:13:54 AM PDT by Illbay
E. J. DIONNE JR. (New York Times Syndicated Columnist):
Justice Scalia has been described as principled, clear, consistent, forceful, wry, irreverent, sometimes scathing. His legal prose has been described as uniquely musical and energetically argumentative. As you all know, he grew up in New York City in Queens, was a star at Xavier High School, and this I didn’t know – he was a whiz kid on New York radio contests. (Laughter.)
He graduated from Georgetown first in his class and editor of the Harvard Law Review. He is married to Maureen McCarthy. He got married in 1960, he has nine children. My wife and I have three kids and I always like to joke that we have a 1960s Catholic family discounted for inflation. Justice Scalia has the real thing. (Laughter.) I honor him for that.
This also you may not know about him. It has been said that he is the one person on the court who can actually carry a tune, and he actually appeared in the opera in a costume worn by Placido Domingo, and so I think one would want to know what kind of judgments Placido Domingo would draw on the Court if they changed robes one day.
I am one of the people who has on occasion disagreed with Justice Scalia’s rulings, particularly on a certain case that came up about a year ago in December – (laughter) – and therefore we will have equal protection when people get in that line. As somebody who has disagreed with him, I have to say that it is a shame that he is very intelligent, it’s a shame that he writes so well, it’s a shame that he is warm and charming – (laughter) – but as the person who appointed him to the Court, Ronald Reagan, once said, “Facts are stubborn things” and these are facts, and it is because of all these qualities that we are so pleased to have him here today.
Now at the risk of acceding to judicial fiat, I would just like to follow a rule Justice Scalia once offered. He offered three rules for lawyers who dared to argue before him: one, pronounce his name correctly – I hope I’ve done that; two, refer to opposing counsel as “dear friend;” and sit down quickly.
Dear friends, I give you Justice Antonin Scalia.
(Applause.)
JUSTICE SCALIA: Thank you. Well, I reiterate the remarks I made at the Manhattan Institute. (Laughter.)
It’s been a great pleasure to sit in on this conference. I’ve been here for all of the sessions. You know, I’m usually dealing with ERISA or the bankruptcy code. Contrary to popular belief, we do not spend most of our time speculating whether there ought to be a right to die. And this is just a wonderful opportunity to think about large and important subjects.
On the other hand, there’s a risk in the other direction that you theologians and philosophers run that was exemplified by a joke that some Internet organization determined was the joke of the year. It appeared in a Washington newspaper – I think it was the “other paper” – (laughter). It seems that Sherlock Holmes and Watson were out camping, and in the middle of the night Holmes wakes up and he nudges Watson, and he says, “Watson! Look up. What do you see?” And Watson says, “My God, Holmes, look at those stars. I’ve never seen so many stars. It’s – it’s magnificent!” And Holmes says, “Watson, what do you deduce from that?” And he says, “Oh, Holmes, there must be some intelligence behind all of this, some prime mover that organized these stars and scattered them across the sky.” And Holmes says, “No, Watson, you idiot, they’ve stolen our tent!” (Laughter.) It’s a risk for philosophers and theologians. (Laughter.)
I want to make clear at the outset of my remarks that what I will have to say or, for that matter, what I have heard at this very interesting conference has 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; that is, our case law dealing with the prohibition dealing with cruel and unusual punishments. Several of our opinions have stated 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 cover 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 the Supreme Court pronounced them. 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 17. That is well above what existed in common law.
If I subscribe to the proposition that I am authorized – indeed, I suppose, compelled – to intuit and impose our maturing society’s evolving standards of decency, this conference would be for me a sort of continuing judicial education. As it is, however, the Constitution that I interpret and apply is not living, but dead; or as I prefer to call it, enduring. (Laughter.) 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 as far as the Constitution is concerned.
Now there is plenty of room within my system – I don’t want to call it mine, it was John Marshall’s system, it is the traditional system. 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.
But while today’s discussions have nothing to do with how I vote as a judge, they – or at least that portion of them that pertains to the morality, as opposed to the policy desirability of the death penalty – have a lot to do with whether I can or should be a judge at all. To put the point in the blunt terms employed by Justice Blackmun towards the end of his career on the bench when he announced that he would henceforth vote to overturn all death sentences, when I sit on a court that reviews and affirms capital convictions, I am part of “the machinery of death.” My vote, when joined with at least four others, is in most cases the last step that permits an execution to proceed. I could not take part in that process if I believed what was being done to be immoral.
Dr. Meilaender said this morning that preservation of the death penalty is not at the top of his list of moral concerns. It’s not at the top of mine, either, but what is at the top – or close to it – is the question whether the death penalty that I take part in administering is moral.
Capital cases are much different from the other life-and-death issues that my Court sometimes faces: abortion, for example, or legalized suicide. There it is not the state of which I am, in a sense, the last instrument that is decreeing death, but rather private individuals whom the state has decided not to restrain.
One may argue, as many do, that the society has a moral obligation to restrain them. That moral obligation may weigh heavily upon the voter and upon the legislator who enacts the laws, but a judge, I think, bears no moral guilt for the laws society has failed to enact.
Thus, my difficulty with Roe v. Wade is a legal rather than a moral one. I do not believe – and no one believed for 200 years – that the Constitution contains a right to abortion. And if a state were to permit abortion on demand, I would and could in good conscience vote against an attempt to invalidate that law, for the same reason that I vote against invalidation of laws that contradict Roe v. Wade; namely, simply because the Constitution gives the federal government and, hence, me no power over the matter.
With the death penalty, on the other hand, I am part of the criminal law machinery that imposes death, which extends from the indictment to the jury conviction to rejection of the last appeal. I am aware of the ethical principle that one can give material cooperation to the immoral act of another when the evil that would attend failure to cooperate is even greater: for example, helping a burglar to tie up a householder where the alternative is that the burglar will kill the householder.
I doubt whether that doctrine is even applicable to the trial judges and jurors, who must themselves determine that the death sentence will be imposed. It seems to me those individuals are not merely engaged in material cooperation with someone else’s action, but are themselves decreeing, on behalf of the state, death.
The same is true of appellate judges. In those states where they are charged with re-weighing the mitigating and aggravating factors and determining de novo whether the death penalty should be imposed, they are themselves decreeing death, whereas in the case of the federal system, the appellate judge merely determines that the sentence pronounced by the trial court is in accordance with law, perhaps the principle of material cooperation could be applied. But as I have said, that principle demands that the good deriving from the cooperation exceed the evil which is assisted. I find it hard to see how any appellate judge could find this condition to be met unless he believes retaining his seat on the bench, rather than resigning, is somehow essential to preservation of the society, which is of course absurd. As Charles de Gaulle is reported to have remarked when his aides told him he could not resign as president of France because he was the indispensable man: “Mon ami, the cemeteries are full of indispensable men.”
I pause at this point to call attention to the fact 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 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. 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 faced by proponents of the living Constitution who believe that it means what it ought to mean. If the death penalty is immoral, then it is surely unconstitutional, and one can continue to sit while nullifying the death penalty. You can see why the living Constitution has such attraction for us judges.
It is a matter of great consequence to me, therefore, whether the death penalty is morally acceptable, and I want to say a few words about why I believe it is. Being a Roman Catholic and being unable to jump out of my skin, I cannot discuss that issue without reference to Christian tradition and the church’s magisterium discussed earlier in this conference by Cardinal Dulles. Those of you to whom this makes no difference must bear with those portions of my remarks.
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. That 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’m quoting from the same passage from Romans, but you should hear the whole thing. I’m using, as you would expect, the King James version. (Laughter.) “Let every soul,” he says, “be subject unto the higher powers, for there is no power but of God. The powers that be are ordained of God . . .” – You know, I never knew where that phrase came from. I’m sure it’s from that passage in the King James – “the powers that be” – “. . . Whosoever, therefore, resisteth the power resisteth the ordinance of God, and they that resist shall receive to themselves damnation, for rulers are not a terror to good works, but to the evil. Wilt thou then not be afraid of the power? Do that which is good and thou shalt have praise of the same. For he is the minister of God to thee for good. But if thou do that which is evil, be afraid, for he beareth not the sword in vain, for he is the minister of God, a revenger to execute wrath upon him that doth evil. Wherefore, ye must needs be subject not only for wrath, but also for conscience sake.”
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. Indeed, only a few lines before the passage I just read, he said, “Dearly beloved, avenge not yourselves, but rather give place unto wrath, for it is written vengeance is mine, saith the Lord.” And in this world, in Paul’s world, the Lord repaid, did justice through his minister, the state.
These passages from Romans represent, I think, the consensus of Western thought until quite recent times – not just of Christian or religious thought, but of secular thought regarding the powers of the state. That consensus has been upset, as I suggested, by the emergence of democracy. It is easy to see the hand of almighty God behind rulers whose forebears, deep in the mists of history, were mythically anointed by God or who at least obtained their thrones in awful and unpredictable battle 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 of 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 has 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 domain 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, a grave sin which causes one to lose his soul, but losing this physical 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 Cramner asks whether he is sure of that, More replies, “He will not refuse one who is so blithe to go to him.”
For the non-believer, on the other hand, to deprive a man of his life is to end his existence – what a horrible act. And 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 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.
Of course, those who deny the authority of a government to exact vengeance are not entirely logical. Many crimes – for example, domestic murder in the heat of passion – are neither deterred by punishment meted out to others, nor likely to be committed a second time by the same offender, yet capital punishment opponents do not object to sending such an offender to prison, perhaps for life, because he deserves punishment, because it is just.
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 has adverse effects in other areas as well: civil disobedience, for example, which proceeds on the assumption that what the individual citizen considers an unjust law 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.
It seems to me that the reaction of people of faith to this tendency of democracy to obscure the divine authority behind government should be not resignation to it but resolution to combat it as effectively as possible, and a principal way of combating it, in my view, is constant public reminder that – in the words of one of the Supreme Court’s religion cases in the days when we understood the religion clauses better than I think we now do – “we are a religious people whose institutions presuppose a supreme being.”
We continue to do this, to make these public reminders in the United States in a number of ways: the annual Thanksgiving proclamation that has been issued ever since George Washington, for example; the ministers in the Congress and in the state legislative bodies; and for that matter, the opening of my court, “God save the United States and this Honorable Court.” That is one way, by the way, in which we differ significantly from the thoroughly secularized European countries.
I happened to be in Rome on September 11 and watched the Trade Towers go down from my hotel room. In the speeches that the president gave afterwards, of course he said at the conclusion, “God bless the United States of America.” One of my European colleagues at the conference I was attending came up to me and said, “How I wish that the prime minister of my country or the president of my country could make such an utterance,” but it would be utterly unheard of. You will only hear an American – and perhaps the English, but not the continental Europeans – invoke the deity for the protection of the state.
You will gather from what I have said that I do not agree with Evangelium Vitae and the new Catholic catechism – or the very latest version of the new Catholic catechism – that the death penalty can only be imposed to protect rather than avenge, and that since it is, in most modern societies, not necessary for the former purpose, it is wrong.
By the way, that is how I read those documents, and not as Cardinal Dulles would read them. It seems to me that the encyclical either ignores or rejects the longstanding church teaching that retribution is a valid purpose; indeed, the principal purpose of government punishment. It’s hard to draw any other conclusion from this passage, which says it is clear that for the purposes of capital punishment to be achieved, the nature and extent of the punishment must be carefully evaluated and decided upon and ought not to 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 very rare if not practically nonexistent. Well, Cardinal Dulles says that what “defends society” means and includes is vindicating social order; in other words, the function of retribution, although he can’t think of any instance where it would be usable. The problem with that is if that’s what it means, if it includes retribution, how can it possibly be that steady improvements in the organization of the penal system somehow no longer render the death penalty a uniquely appropriate means of retribution? One would think that the better the penal system gets, the less adequate a substitute for the death penalty it is. I mean, Devil’s Island might be as bad as getting your head chopped off, but certainly not residence in a modern penal institution with a television set. It seems to me to cut in precisely the opposite direction if you interpret that passage as referring to retribution.
On the other hand, it must be admitted that the encyclical, earlier, does say that the primary purpose of the punishment which society inflicts is to redress the disorder caused by the offense. So there is ambiguity there, and I would of course like to interpret it the best way, but for purposes of my remarks, let me interpret it the worst and see what I can make of it. (Laughter.)
Unlike such other hard Catholic doctrines as the prohibition of birth control and of abortion, this doctrine – if my worst interpretation is correct – is not a moral position that Christianity has always maintained. There have been Christian opponents of the death penalty just as there have been Christian pacifists, but neither of those positions has even been predominant in the church. Its current predominance is the handiwork of Napoleon, Hegel and Freud rather than of St. Thomas and St. Augustine.
I mentioned earlier Thomas More, who has long been regarded in this country as the patron saint of us lawyers – (laughter) – and has recently been declared by the Vatican the patron saint of politicians. I’m not sure that’s a promotion. (Laughter.) 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.
So I am happy to learn from Dulles – and I have had the same advice from other canonical experts – that the statement contained in Evangelium Vitae – assuming it means the worst – does not represent ex cathedra teaching; that is, it need not be accepted by practicing Catholics, although they must give it thoughtful and respectful consideration. Indeed, it would be remarkable to think that it was an ex cathedra pronouncement, that a couple of paragraphs contained in an encyclical principally devoted not to capital punishment, but to abortion and euthanasia, were intended authoritatively to sweep aside two millennia of Christian teaching. And as for the very latest edition of the new Catholic catechism, I assume that is just the phenomenon of the clerical bureaucracy saying, “Yes, boss.” (Laughter.)
In any case, I have given this new position – if it is indeed that – thoughtful and respectful consideration, and have rejected it. (Laughter.) That is not to say that I favor the death penalty. I am judicially and judiciously neutral on that point. It is only to say that I do not find the death penalty immoral. I am happy to have reached that conclusion because I like my job and would rather not resign. (Laughter.) And I am happy because I do not think it would be a good thing if American Catholics running for legislative office had to oppose the death penalty. Most of them would not be elected. If American Catholics running for governor had to promise commutation of all death sentences, most of them would never reach the governor’s mansion. I do not think it would be a good thing if American Catholics were ineligible to go on the bench in all jurisdictions imposing the death penalty, if American Catholics were subject to recusal when called for jury duty in capital cases.
I find it ironic that the church’s new, albeit non-binding, position on the death penalty, which if accepted would have these disastrous consequences, is said to rest upon, of all things, prudential consideration. Is it prudent when one is not certain enough about the point to proclaim it as an article of faith – and with good reason given the long and consistent Christian tradition to the contrary? Is it prudent to effectively urge the retirement of Catholics from public life in a country where the federal government and 38 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 teaching on birth control and abortion, teachings that are ex cathedra – a distinction that the average Catholic layman is unlikely to grasp – by packaging them under the wrapper, “respect for life,” with another doctrine that everyone knows does not represent the traditional Christian view? Perhaps, one is invited to conclude, they are all three made up.
In short, this does not seem to me the course of prudence.
Thank you.
(Applause.)
I think these remarks are classic (and sent the Liberals into PAROXYSMS, I can tell you!) And juxtaposed against THIS ARTICLE they are made all the more compelling.
I posted this after I heard a story by Mara Laison this morning on NPR (yes, I admit it, I do listen to National Pinko Radio from time to time). Actually, I thought her reportage was pretty balanced as NPR stuff goes. The excerpts she played of the speech were SO compelling: Antonin Scalia is a national treasure and one of the few keen minds in government in our time.
His eloquence makes the arguments against him--some of which were quite shrill and silly in the wake of this speech--pale in comparison.
OP,
Taking into account the view of Calvin regarding what I highlighted here, what is the OP view of capital punishment?
And put her next to Nina Tottenberg, and she almost appears Limbaugh-esque.
Agreed. Indeed, his excellent reasoning and eloquence make me somewhat afraid to not be Catholic.
The Constitution hasn't changed and therefore the justices did not interpret the Consitution when the "changing society" argument is used for justification.
And any discussion of morals should bring about an immediate moratorium on abortions until science defines a moment when life begins.
If states are free to interpret mental ability without a national standard, then this decision has not helped the mentally challenged either since the death penalty would not be equally applied across the country.
The OP view, is that the Noahic Covenant is every bit as binding on all Nations today as it was the day after the Flood.
It should be noted that the "term" of this Commandment is self-referentially defined in the Commandment itself: for as long as the Race of Man is the Imago Dei (which is to say, forever) -- the Death Penalty remains the rightful penalty for Murder.
In short, the OP view is simply, "Let Right Be Done". The ultimate salvation or damnation of the Murderer is juridically irrelevant; God will sort that out (indeed, He already has, before Creation). The Jurist's duty is simply to obey the Noahic Covenant -- "whoso sheddeth man's blood, by man shall his blood be shed".
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