Faulty Theology, Strange Jurisprudence: Scalia's Defense of Death Penalty Backed by Incoherent Reasoning. (Column)

Article excerpt

When the University of Chicago Divinity School, in connection with the Pew Forum on Religion and Public Life, planned a conference on religion and the death penalty someone invited Supreme Court Justice Antonin Scalia. Everyone was more than a bit surprised when he came. By a long-followed tradition members of the Supreme Court do not speak up on topics that might come before their court,

Justice Scalia stated unequivocally that he disagreed with the position of the pope and the Catholic church on the death penalty. He also startled the conference by asserting that he and any other Catholic judge who concurred with the pope on capital punishment would be obliged to resign from the bench. He said: "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."

In addition, Scalia claimed that since the Holy See has not condemned the death penalty ex cathedra it is not binding. The faulty theology in that statement is dear to everyone.

Sometime after the Chicago conference Scalia reaffirmed his position on the death penalty. Responding to a question after a lecture on Feb. 4 at Georgetown University, Scalia cited St. Paul's Letter to the Romans (13:1-7) asserting that the state was invested with divine authority and must be obeyed. Scalia went beyond this and claimed that the abolition of the death penalty all over Europe is "symptomatic of a general loss of religious faith." He continued by claiming that "the more Christian a country is, the less likely it is to regard to the death penalty as immoral."

Scalia also rejected the view of Cardinal Avery Dulles, also present at the Chicago conference, who explained and agreed with the new doctrine of the Holy See and the Catholic catechism on the death penalty. Scalia brushed off the catechism by snidely asserting that it is "just the phenomenon of the clerical bureaucracy saying, `Yes, boss.'"

Scalia rejected the generally accepted doctrine of an evolving Constitution by claimIng that if one accepts that idea, "you don't have a Constitution at all." Under his interpretation the prohibition of "cruel and unusual punishment" in the Eighth Amendment would mean only what it was taken to mean in 1791 when the Bill of Rights was ratified.

Scalia on a panel of four at Chicago claimed that in his judicial capacity he was neither for nor against the death penalty. But many observers would say that in his opinions on the death penalty he has resisted any liberalization. …