Scalia v. the Pope: Who’s Right on the Death Penalty?

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– February 8, 2002

Supreme Court Justice Antonin Scalia certainly set the cat down among the pigeons the other day at his alma mater Georgetown University. Challenging the views of the pope and the U.S. bishops, the justice urged any Catholic judge who could not in conscience impose a death sentence to get off the bench.

“[T]he choice for the judge who believes the death penalty to be immoral,” said Scalia, “is resignation, rather than simply ignoring duly enacted constitutional laws and sabotaging the death penalty.”

Within hours of the story hitting the wires, Wolf Blitzer was on the phone. Could I come over to CNN and explain how the justice, a devout Catholic, could openly defy the teachings of his church?

Delighted. For Scalia had not contradicted or defied any Catholic doctrine. Rather, it is the Holy Father and the bishops who are outside the Catholic mainstream, and at odds with Scripture, tradition and natural law. For an exposition of Catholic doctrine, one should pick up the essay by Cardinal Avery Dulles in the April issue of First Things. As Dulles notes, Catholicism has supported the death penalty for 2000 years:

“In the Old Testament, the Mosaic Law specifies no less than 36 capital offenses calling for execution by stoning, burning, decapitation or strangulation. Included in the list are idolatry, magic, blasphemy, violation of the Sabbath, murder, adultery, bestiality, pederasty and incest. The death penalty was considered especially fitting as a punishment for murder, since in his covenant with Noah, God had laid down the principle, ‘Whoever sheds the blood of man, by man shall his blood be shed. …’

“In the New Testament, the right of the State to put criminals to death seems to be taken for granted. … At no point … does Jesus deny that the State has authority to exact capital punishments. In his debates with the Pharisees, Jesus cites with approval the apparently harsh commandment, ‘He who speaks evil of father or mother, let him surely die.’ … When Pilate calls attention to his authority to crucify him, Jesus points out that Pilate’s power comes to him from above ? that is to say from God. … Jesus commends the good thief on the cross next to him, who has admitted that he and his fellow thief are receiving the reward of their deeds.”

In Christian tradition, “the Fathers and Doctors of the Church are virtually unanimous in their support for capital punishment,” adds Dulles, citing St. Augustine in “The City of God”: “[I]t is in no way contrary to the commandment ‘Thou shalt not kill’ … for the representatives of the State’s authority to put criminals to death. …” To support the State’s right to execute, St. Thomas Aquinas invoked Scripture, tradition and reason alike.

“In the High Middle Ages and early modern times, the Holy See authorized the Inquisition to turn over heretics to the secular arm for execution,” writes Dulles. “In the Papal States, the death penalty was imposed for a variety of reasons.” Until 1969, Vatican City provided for the death penalty for any who might attempt to assassinate the pope.

As the death penalty has been supported by the Catholic Church since the first Pentecost, whence comes this episcopal Catholic opposition?

“The roots of opposition … are not in Christianity,” continues Dulles. “The mounting opposition to the death penalty in Europe since the Enlightenment has gone hand in hand with a decline in faith in eternal life. In the 19th century, the most consistent supporters of capital punishment were the Christian churches, and its most consistent opponents were groups hostile to the churches. When death came to be understood as the ultimate evil rather than as a stage on the way to eternal life, utilitarian philosophers such as Jeremy Bentham found it easy to dismiss capital punishment as ‘useless annihilation.’

“The movement to abolish the death penalty in formerly Christian countries may owe more to secular humanism than to deeper penetration into the gospel. When Pope John Paul declared in 1995 that, ‘the direct and voluntary killing of an innocent human being is always gravely immoral,’ he was careful to insert the word, ‘innocent.'”

As Europe has become less Christian, secular opposition to the death penalty has been imposed from above by European elites.

Thus, Scalia was right about church doctrine, and right about the law. No judge morally opposed to the death penalty should sit in a capital murder case. To do so would be an act of moral arrogance and judicial nullification of democratic rule.

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