Speaking to a Georgetown audience last week, Justice Antonin Scalia restated his view that any judge who believes the death penalty is immoral should resign, rather than ignore duly enacted laws. Then he offered a challenge not only to judges but also to the Vatican, “No authority that I know of denies the 2000-year old tradition of the Church approving capital punishment, I don’t see why there’s been a change.”
Scalia is a devout Roman Catholic, the father of nine children one of whom is a priest. After doing much soul-searching on the death penalty he finds he isn’t opposed to it.
His remarks are consistent with the constructionist position that judges shouldn’t legislate from the bench, but only uphold the law.
Does this view put Scalia in opposition to the Catholic Church?
Catholic teaching on the death penalty is not the same as it is for abortion or euthanasia. “The Church does not exclude recourse to the death penalty, if this is the only possible way of effectively defending human lives against the unjust aggressor,” explains Father C. John McCloskey of the Catholic Information Center in Washington, D.C.
The most recent teaching on the death penalty is found in Pope John Paul II’s 1995 encyclical on Human Life, “Evangelium Vitae,” in which he develops a “seamless garment” argument in condemning abortion, euthanasia, genocide, torture, slavery, prostitution, and any practice that degrades, debases, or poses a threat to human life. The death penalty is included with a caveat.
Says Father McCloskey, “If to the mind of a Catholic judge or lawyer, there is no recourse but to impose or seek the penalty, the teaching says there are possibilities, though rare, in which the death penalty can be applied.”
“Judges should do their best to obey the law as it comes to them through the legislative or executive branch,” says Father McCloskey. “A judge is sworn to uphold the Constitution to the best of his ability. But it’s silly for a Catholic to say, ‘it’s in the Constitution, it must be right.’ Slavery was also in the Constitution.”
Then, by this reasoning, should a Catholic judge refuse to take abortion cases since the law of the land is pro-choice?
It depends. A judge, who has no choice in the cases that come before him has an obligation to administer the law, even when it is devoid of constitutional merit, such as Roe v. Wade.
If he cannot administer the law because he believes it makes him a party to an immoral act, he can recuse himself. But he is not considered an accessory to an abortion in every single case, such as ruling on the issue of parental consent, the most common abortion cases in the courts today.
As a judicial constructionist, Justice Scalia is right to oppose the infamous ruling. He is also right to overturn it, and hand the issue back to the state legislatures, should that opportunity ever present itself, simply on constitutional (not religious) grounds.
It just so happens that Scalia’s pro-life views as a Catholic are in keeping with his constructionist reading of the Constitution that fails to see any allowance for a “right to an abortion” in the privacy clause of the Fourth Amendment. As judicial constructionists argue, Roe v. Wade demonstrates the danger in using one’s power as a judge or Supreme Court justice to write, rather than administer, law; a function that is to be left to the state legislatures.
No doubt Scalia’s comments will come back to haunt him should he be nominated as Chief Justice. But his understanding is sound. Scalia has developed his own seamless argument.
Judges should not legislate from the bench. Abortion was made legal by judicial fiat, which overturned state laws. To oppose Roe v. Wade as a Supreme Court Justice, one need not be pro-life, simply honest about the limitations of the federal bench.
Judges should not use their position to sabotage the law. The death penalty is available in 37 states, where it has been voted upon by the residents of those states and enacted by the legislatures.
Scalia’s remarks on the death penalty bolster his constructionist view. The Pope’s moral teachings on the death penalty tighten the “seamless garment” that human life must be treated with dignity, while not excluding recourse to the death penalty in certain cases.
In both instances, Scalia the constructionalist, and the Pope, leader of all Catholics, have rendered seamless arguments that make Roe v. Wade much harder to defend.
Eileen Ciesla is the 2001-2002 Warren Brookes journalism fellow at the Competitive Enterprise Institute.