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Contributor
Join Date: Jun 2000
Location: Los Angeles area
Posts: 40,549
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The <a href="http://pewforum.org/deathpenalty/resources/transcript3.php3" target="_blank">transcript</a> contains some interesting ideas:
Quote:
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.
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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.
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02-04-2002, 05:08 PM
