God’s Justice and Ours
Antonin Scalia
Before proceeding to discuss the morality of capital punishment, I want to
make clear that my views on the subject have 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, our case law dealing with the prohibition
of “cruel and unusual punishments.” Several of our opinions have said 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 color 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 they were judicially decreed. 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 seventeen) that is well
above what existed at common law.
If I subscribed to the proposition that I am authorized (indeed, I suppose
compelled) to intuit and impose our “maturing” society’s “evolving standards
of decency,” this essay would be a preview of my next vote in a death penalty
case. As it is, however, the Constitution that I interpret and apply is not
living but dead—or, as I prefer to put it, enduring. 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.
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 my views on the morality of the death penalty have nothing to do
with how I vote as a judge, they 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 Harold Blackmun towards the end of his career on the bench, when he
announced that he would henceforth vote (as Justices William Brennan and
Thurgood Marshall had previously done) 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.
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. 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, for two hundred years, no one believed) 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 the
invalidation of laws that forbid abortion on demand: 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 tie up a householder where the alternative is
that the burglar would 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 these individuals are
not merely engaged in “material cooperation” with someone else’s action, but
are themselves decreeing death on behalf of the state.
The same is true of appellate judges in those states where they are charged
with “reweighing” the mitigating and aggravating factors and determining de
novo whether the death penalty should be imposed: they are themselves
decreeing death. Where (as is the case in 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 reputed 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 here to emphasize the point 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 death penalty
cases. He has, after all, taken an oath to apply the 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
confronted by a proponent of the “living Constitution,” who believes that it
means what it ought to mean. If the death penalty is (in his view) immoral,
then it is (hey, presto!) automatically unconstitutional, and he can continue
to sit while nullifying a sanction that has been imposed, with no suggestion
of its unconstitutionality, since the beginning of the Republic. (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. As 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.
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. This 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 am quoting, as you might expect, the King James version):
Let every soul be subject unto the higher powers. For there is no power
but of God: the powers that be are ordained of God. 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 doeth evil. Wherefore ye must
needs be subject, not only for wrath, but also for conscience sake. (Romans
13:1–5)
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. Only a few
lines before this passage, he wrote, “Dearly beloved, avenge not yourselves,
but rather give place unto wrath: for it is written, Vengeance is mine; I will
repay, saith the Lord.” And in this world the Lord repaid—did justice—through
His minister, the state.
These passages from Romans represent the consensus of Western thought until
very recent times. Not just of Christian or religious thought, but of secular
thought regarding the powers of the state. That consensus has been upset, I
think, by the emergence of democracy. It is easy to see the hand of the
Almighty behind rulers whose forebears, in the dim mists of history, were
supposedly anointed by God, or who at least obtained their thrones in awful
and unpredictable battles 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 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 is 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 home 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: it is a grave sin,
which causes one to lose his soul. But losing this 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 Cranmer asks whether he is sure of that, More
replies, “He will not refuse one who is so blithe to go to Him.” For the
nonbeliever, on the other hand, to deprive a man of his life is to end his
existence. What a horrible act!
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, which God will not permit beyond man’s capacity to
resist—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 opponents of capital
punishment 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 as individuals has adverse effects in
other areas as well. It fosters civil disobedience, for example, which
proceeds on the assumption that what the individual citizen considers an
unjust law—even if it does not compel him to act unjustly—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. The
reaction of people of faith to this tendency of democracy to obscure the
divine authority behind government should not be resignation to it, but the
resolution to combat it as effectively as possible. We have done that in this
country (and continental Europe has not) by preserving in our public life many
visible reminders that—in the words of a Supreme Court opinion from the
1940s—“we are a religious people, whose institutions presuppose a Supreme
Being.” These reminders include: “In God we trust” on our coins, “one nation,
under God” in our Pledge of Allegiance, the opening of sessions of our
legislatures with a prayer, the opening of sessions of my Court with “God save
the United States and this Honorable Court,” annual Thanksgiving proclamations
issued by our President at the direction of Congress, and constant invocations
of divine support in the speeches of our political leaders, which often
conclude, “God bless America.” All this, as I say, is most un–European, and
helps explain why our people are more inclined to understand, as St. Paul did,
that government carries the sword as “the minister of God,” to “execute wrath”
upon the evildoer.
A brief story about the aftermath of September 11 nicely illustrates how
different things are in secularized Europe. I was at a conference of European
and American lawyers and jurists in Rome when the planes struck the twin
towers. All in attendance were transfixed by the horror of the event, and
listened with rapt attention to the President’s ensuing address to the nation.
When the speech had concluded, one of the European conferees—a religious
man—confided in me how jealous he was that the leader of my nation could
conclude his address with the words “God bless the United States.” Such
invocation of the deity, he assured me, was absolutely unthinkable in his
country, with its Napoleonic tradition of extirpating religion from public
life.
It will come as no surprise from what I have said that I do not agree with
the encyclical Evangelium Vitae and the new Catholic catechism (or the
very latest version of the new Catholic catechism), according to which 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. That, by the way, is how I read those documents—and not, as Avery
Cardinal Dulles would read them, simply as an affirmation of two millennia of
Christian teaching that retribution is a proper purpose (indeed, the principal
purpose) of criminal punishment, but merely adding the “prudential judgment”
that in modern circumstances condign retribution “rarely if ever” justifies
death. (See “Catholicism & Capital Punishment,” FT, April 2001.) I cannot
square that interpretation with the following passage from the encyclical:
It is clear that, for these [permissible purposes of penal justice] 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. Today, however, as a
result of steady improvements in the organization of the penal system, such
cases are very rare, if not practically nonexistent. (Emphases deleted
and added.)
It is true enough that the paragraph of the encyclical that precedes this
passage acknowledges (in accord with traditional Catholic teaching) that “the
primary purpose of the punishment which society inflicts is ‘to redress the
disorder caused by the offense’” by “imposing on the offender an adequate
punishment for the crime.” But it seems to me quite impossible to interpret
the later passage’s phrase “when it would not be possible otherwise to defend
society” as including “defense” through the redress of disorder achieved by
adequate punishment. Not only does the word “defense” not readily lend itself
to that strange interpretation, but the immediately following explanation of
why, in modern times, “defense” rarely if ever requires capital punishment
has no bearing whatever upon the adequacy of retribution. In fact, one
might say that it has an inverse bearing.
How in the world can modernity’s “steady improvements in the organization
of the penal system” render the death penalty less condign for a particularly
heinous crime? One might think that commitment to a really horrible penal
system (Devil’s Island, for example) might be almost as bad as death. But nice
clean cells with television sets, exercise rooms, meals designed by
nutritionists, and conjugal visits? That would seem to render the death
penalty more, rather than less, necessary. So also would the greatly increased
capacity for evil—the greatly increased power to produce moral
“disorder”—placed in individual hands by modern technology. Could St. Paul or
St. Thomas even have envisioned a crime by an individual (as opposed to one by
a ruler, such as Herod’s slaughter of the innocents) as enormous as that of
Timothy McVeigh or of the men who destroyed three thousand innocents in the
World Trade Center? If just retribution is a legitimate purpose (indeed, the
principal legitimate purpose) of capital punishment, can one possibly say with
a straight face that nowadays death would “rarely if ever” be appropriate?
So I take the encyclical and the latest, hot–off–the–presses version of the
catechism (a supposed encapsulation of the “deposit” of faith and the Church’s
teaching regarding a moral order that does not change) to mean that
retribution is not a valid purpose of capital punishment. Unlike such other
hard Catholic doctrines as the prohibition of birth control and of abortion,
this is not a moral position that the Church has always—or indeed ever
before—maintained. There have been Christian opponents of the death
penalty, just as there have been Christian pacifists, but neither of those
positions has ever been that of the Church. The current predominance of
opposition to the death penalty is the legacy of Napoleon, Hegel, and Freud
rather than St. Paul and St. Augustine. I mentioned earlier Thomas More, who
has long been regarded in this country as the patron saint of lawyers, and who
has recently been declared by the Vatican the patron saint of politicians (I
am not sure that is a promotion). 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.
I am therefore happy to learn from the canonical experts I have consulted
that the position set forth in Evangelium Vitae and in the latest
version of the Catholic catechism does not purport to be binding teaching—that
is, it need not be accepted by practicing Catholics, though they must give it
thoughtful and respectful consideration. It would be remarkable to think
otherwise—that a couple of paragraphs in an encyclical almost entirely devoted
not to crime and punishment but to abortion and euthanasia was intended
authoritatively to sweep aside (if one could) two thousand years of Christian
teaching.
So I have given this new position thoughtful and careful consideration—and
I disagree. That is not to say 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. 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); if
American Catholics were ineligible to go on the bench in all jurisdictions
imposing the death penalty; or 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 nonbinding) position on the
death penalty—which, if accepted, would have these disastrous
consequences—is said to rest upon “prudential considerations.” Is it prudent,
when one is not certain enough about the point to proclaim it in a binding
manner (and with good reason, given the long and consistent Christian
tradition to the contrary), to effectively urge the retirement of Catholics
from public life in a country where the federal government and thirty–eight 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 teachings on birth control and abortion
and euthanasia (teachings that have been proclaimed in a binding
manner, a distinction that the average Catholic layman is unlikely to grasp)
by packaging them—under the wrapper “respect for life”—with another
uncongenial doctrine that everyone knows does not represent the traditional
Christian view? Perhaps, one is invited to conclude, all four of them are
recently made–up. We need some new staffers at the Congregation of Prudence in
the Vatican. At least the new doctrine should have been urged only upon
secular Europe, where it is at home.
Antonin Scalia is a Justice of the Supreme Court of the United States. This
article is adapted from remarks given at a conference sponsored by the Pew
Forum on Religion and Public Life at the University of Chicago Divinity
School.