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Robert H Bork
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FIRST THINGS ^ | Oct.
2002 | Robert H. Bork
Posted on
Wednesday, 5 April 2006 7:09:13 AM by Conservative Coulter Fan
Justice
Scalia’s argument about the death penalty has two aspects. The first concerns
the duty of the judge; the second has to do with the respect owed by Catholics
to the Pope’s call for the virtual abolition of the penalty in Evangelium
Vitae.
As to the
first, the duty of the judge, there can, it seems to me, be no reasonable
disagreement. The Constitution several times explicitly recognizes capital
punishment, leaving legislatures free to choose or reject that sanction. Most
American legislatures have chosen it. By what warrant, then, can a Justice of
the Supreme Court abolish what the Constitution allows and legislatures have
chosen? No such warrant exists. Those Justices who have in the past announced
that they would never uphold the imposition of the death penalty but would
declare it unconstitutional—William Brennan, Thurgood Marshall, and Harry Blackmun,
for example—were, to that extent, no more and no less than civil disobedients.
In fact, such lawless magistrates are more reprehensible and more dangerous
than the civil disobedients of the streets, for the magistrates, though sworn
to uphold the law, instead attack the law from within and are immune to the
punishments their brethren of the streets may receive.
It is
common for a lawless judge to justify his vote by claiming that “our morality
has evolved,” so that the death penalty is now barred by the Eighth Amendment’s
proscription of “cruel and unusual punishments.” Hence it does not matter that
the ratifiers who made the Constitution law decreed that capital punishment was
legitimate. There are at least two problems with that assertion. A flat statement
of law cannot “evolve.” The words are what they are and mean what they were
understood to mean when they were adopted. But grant the premise that meaning
changes as morality changes. Even so, the unconstitutionality of capital
punishment does not follow. If, in fact, capital punishment were inconsistent
with “our evolving morality,” there would be no death penalty statutes on the
books. Legislators would not enact them. Yet many states and Congress have done
so, which shows where, in fact, our morality stands. When a Justice says “our”
morality has evolved, it means only that his morality opposes the sanction, a
fact that may be of interest to his biographer but is legally irrelevant.
What,
then, is a Catholic judge to do if the Church now, for the first time in two
thousand years, makes the condemnation of capital punishment binding on
Catholics? Justice Scalia is absolutely right. He must either violate his duty
as a Catholic or his duty as a judge. If neither of those choices is
acceptable, and neither should be, his only alternative is to resign. A halfway
measure, disqualifying himself in capital cases, would be an unacceptable
evasion of responsibility, for that might often mean that the death penalty
would be overthrown by other judges. Recusal would then enable an
unconstitutional action by a court.
Justice
Scalia’s position has been subjected to a vigorous attack by Denver Archbishop
Charles Chaput. Arguing that “if we say we’re Catholic, we need to act like
it,” the Archbishop goes on to say that “when Catholic Supreme Court Justice
Antonin Scalia publicly disputes Church teaching on the death penalty, the
message he sends is not all that different from Frances Kissling disputing what
the Church teaches about abortion. Obviously, I don’t mean that abortion and
the death penalty are identical issues. They’re not, and they don’t have
equivalent moral gravity. But the impulse to pick and choose what we’re going
to accept is exactly the same kind of ‘cafeteria Catholicism’ in both cases.”
That is pretty
rough talk, and, in my non-Catholic view, wholly unjustified. The Church has
firmly opposed abortion from its earliest days. It has also favored the death
penalty for two thousand years—until now. I leave to others the question
whether two millennia of Church teaching can be swept aside, indeed reversed,
so easily by today’s Pope. It is not clear, of course, that John Paul II has
tried to change Church teaching in a way that binds Catholics. John Cardinal
O’Connor thought the Pope had not done so. That must be reassuring for Catholic
judges, jurors, legislators, government executives, and those who execute the
sentence.
But that
is only partly my point. My difficulty has to do with the Church adopting
positions that may be taken to be binding on public affairs when it has no
special, or sometimes even an adequate, understanding of the subject. If the
Pope or the bishops express opinions on such matters, that is certainly their
right. But they should be owed no particular deference, either by Catholics or
others.
Look at
the Pope’s words in Evangelium Vitae: The state “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 rare, if not practically nonexistent.” (Emphases deleted and added.)
Two things are to be noted. First, imprisonment does not exact just retribution
for particularly horrible crimes. Death penalty cases involve crimes of almost
unbelievable savagery and brutality. Richard Speck, who butchered eight student
nurses in their apartment, enjoyed narcotics parties with other inmates.
Charles Manson, being bisexual, has found prison no great ordeal. He and his
disciples murdered the pregnant Sharon Tate and four others in her home. I
argued a case for the government in which the defendant had told friends that
he wanted sex with a young girl, went to a public swimming pool, seized a
ten-year-old girl, threw her in the back of his pickup truck, drove her through
town while she screamed futilely for help, took her to a river, raped her,
drowned her, and then bought beer to drink while sharing his happy recollection
with friends. If ever a man deserved the death sentence, he did, and he got it.
Life
imprisonment does not, in any event, fully protect society. Imprisoned
murderers have killed guards and other prisoners. They have been paroled or
escaped and killed again. Just two years ago, seven hardened criminals, one of
whom was serving eighteen life sentences, escaped from a maximum-security Texas
prison. A few weeks later, while robbing a sporting goods store, they killed a
police officer, shooting him thirteen times and then driving over his body. The
blood of the murderers’ new victims is at least partially on the hands of those
who make the execution of such killers impossible.
An
additional problem with the Pope’s statement is that it rests upon a prudential
judgment that he is no more qualified to make than we are. The Church is not
only a spiritual body representing Christ on earth but also a quite human
political and cultural institution. As such, it resembles the judicial system
in being vulnerable to the tides of the culture, particularly the culture of
the intelligentsia. Archbishop Chaput would place the Church’s prudential
judgments, influenced less by traditional Christian thought than by current
social nostrums, on the same level as pronouncements about faith and morals. He
notes that William Buckley did not admire the economics in Pope John XXIII’s
encyclical Mater et Magistra and wrote a famous column, “Mater si, Magistra
no!” The Archbishop asserted that Buckley was, for that reason, a “cafeteria
Catholic.”
This
comes close to being intolerable. If the Church does not understand basic
economics, it is worse than folly to insist that Catholics must believe what
they know to be wrong and which no spiritual authority can make right. The
American bishops have held forth in an uninformed manner not only about
economics but about nuclear weaponry. Chaput himself has said Catholics have
“listened to the world too politely when it lies” about “the death penalty, or
our obligations to the poor, or the rights of undocumented workers, or the real
meaning of pluralism, or our international responsibilities”; they should have
“shouted out the truth.” The Church does not have any monopoly on truth about
our obligations to the poor, the rights of undocumented workers (a.k.a. illegal
aliens), the real meaning of pluralism, or our international responsibilities.
These are matters of prudential judgment and the Church should not attempt to
foreclose discussion as if correct answers are known only to the clergy.
These are
not matters of concern only to Catholics. My interests as a citizen are
diminished if Catholics who would otherwise agree with me feel compelled to
vote the other way by a Pope’s pronouncement on issues outside his
jurisdiction. The opinions expressed in Evangelium Vitae about the death
penalty are to be regretted, because spiritual authority, though it should not,
tends to be confused with secular prudential thought. The Pope’s opinion need
be accorded only the respect that it deserves on the merits of his argument.
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