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Scalia’s Faith-Based Judging

Daniel Fincke has an interesting post at Camels With Hammers about Justice Scalia and his use of faith-based arguments in favor of the death penalty — all the more interesting given his recent statements about the death penalty and the Catholic Church. This is from an opinion written in 2002 by Scalia in a death penalty case:

“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.”

And Fincke reacts to it:

While I think there are rational reasons that could be marshaled for and against the death penalty, I find it really disturbing that a Supreme Court Justice who favors the death penalty is essentially implying that he only does so because of his baseless religious belief in an afterlife. This is a clear and consequential case of a powerful man admitting that he thinks human life can be taken and it is essentially no big deal in the grand scheme of things because we are actually immortal. Of course we are not allowed to kill the innocent—but, heck, even if we screw up and kill some of them by accident, what’s the big deal here really?

To be clear, this is a religious metaphysics (which says we are immortal) that flies in the face of what our eyes tell us (that we are mortal) determining the law of the land, insofar as Scalia’s views of the death penalty (and who knows who else’s—Thomas’s? Alito’s? Roberts’s?) are based on a faith belief that has no independent, secularly defensible evidence.

A few weeks ago, you may recall, Scalia declared that he would resign as a judge if he thought the death penalty was inconsistent with Catholic doctrine — which it is, of course. So not only does Scalia rely on religious arguments to support his judicial opinions, he also conveniently ignores them when necessary, even while pretending not to do so.

Comments

  1. says

    A few weeks ago, you may recall, Scalia declared that he would resign as a judge if he thought the death penalty was inconsistent with Catholic doctrine — which it is, of course.

  2. says

    A few weeks ago, you may recall, Scalia declared that he would resign as a judge if he thought the death penalty was inconsistent with Catholic doctrine — which it is, of course.

    Even the Nazi Vampire Pope still thinks so…

  3. d cwilson says

    Wow. Scalia manages to express his contempt for both democracy and his own religious doctrine in one essay.

    The problem with this theological justification for the death penalty is that implies that the best blessing you can give to a true believer is to kill them. Or kill yourself if you’re so “blithe” to go be with gawd.

  4. says

    So, notwithstanding all the “culture of life” rhetoric, it turns out that death is no big deal after all. Doublethink at its finest.

    (Aside: How cool is it that the FTB spell-checker accepts “doublethink”?)

  5. D. C. Sessions says

    Scalia declared that he would resign as a judge if he thought the death penalty was inconsistent with Catholic doctrine

    Not meant to be a factual statement.

  6. says

    It’s really rather absurd to refer to Pope Benedict as a Nazi. He was inducted into the Hitler youth as a very young man, as all young men were. He actually deserted from the German army during WW2 and his family was firmly opposed to the Nazi regime. There are lots and lots of valid things to criticize the pope about; this isn’t one of them.

  7. says

    So he doesn’t believe in a literal hell then? Because as bad as I feel it is to end someone’s existence permanently, I’d think it would be even worse to send them to be eternally tortured.

  8. says

    “Indeed, it seems to me that the more Christian a country is, the less likely it is to regard the death penalty as immoral.”
    That explains the Inquisition, the Reformation, slaughtering the Cathars and so on.
    Given that, what is the value of Christianity?

  9. D. C. Sessions says

    So, notwithstanding all the “culture of life” rhetoric, it turns out that death is no big deal after all.

    You probably meant that to be sarcastic, but it’s literally true. Those who die before being baptised apparently suffer in ways that those who managed to make it to baptism don’t, or something like that.

    Therefore, it’s a Really, Really Bad Thing to abort a fetus to save the life of the mother, because she’s at least had a chance to be Saved (and if the bitch refused the opportunity, it’s best to get the eternity of torment started as soon as possible anyway.)

  10. Michael Heath says

    Antonin Scalia reminds me of Donald Trump as he increasingly embraces playing the role of a buffoon. Perhaps he seeks a new niche given Chief Justice John Roberts has taken up aping the behavior of the Rehnquist-era J. Scalia. In CJ Roberts case that would be a heavy reliance on incredibly dumb rhetorical questions based on red herrings, false restrictions of alternatives, and false equivalencies.

  11. says

    Ironically, in the UK, I don’t believe the public has ever given majority support for the abolition of the death penalty. Indeed, even today, depending on the crime, up to 70% of Brits are for its reinstatement. I suspect that’s the same in many countries.

    The key to abolition in a number of these places has been that the government, which typically is (or should be) be in a better position to judge the merits of having the death penalty, has abolished it against the wishes of the majority of the general public. In the UK, the periodic votes in Parliament pro or con the reinstatement of the death penalty were “free votes” — i.e. neither party whipped their members thus allowing votes based on conscience. (At least they were in the 80s when the question came up a number of times.)

    Of course, in the authoritarian US, politicians are typically scared witless by the very thought that they might be accused of being soft on crime, thus there has never been similar votes here.

    As for the belief that the human soul is immortal, quite simply, it makes people’s lives here on Earth utterly inconsequential. We typically live, at most, only 80 years before we die, and then we spend the rest of eternity–countless billions of years–in the afterlife, thus even a mayfly’s day in the sun has infinitely more significance than our time here on Earth.

    And if Hell is real, condemning someone who is in a state of mortal sin (a Catholic definition) to death is infinitely worse than ending a person’s existence if there is no afterlife, since their death would only be the beginning of their unimaginable suffering. (The Catholic Church is clearly squeamish about this, and gets all squishy when it comes to deciding who goes to Hell and for how long, but that really doesn’t alter the equation all that much.)

    Just as in mathematics, when you start introducing infinities into the equation, you run a high risk of ending up with gibberish.

  12. Aquaria says

    Something I’ve been wondering about…

    If Scalia died tomorrow, would Clarence Thomas remain true to form and do the same?

  13. says

    Therefore, it’s a Really, Really Bad Thing to abort a fetus to save the life of the mother, because she’s at least had a chance to be Saved (and if the bitch refused the opportunity, it’s best to get the eternity of torment started as soon as possible anyway.)

    Of course, that depends on what you believe happens to a fetus. Conservative Protestants typically believe that they get a free pass into Heaven given that they are below the “age of accountability”, even though that makes a nonsense of their implacable opposition to abortion since it’s the only 100% guaranteed way your child will make it to Heaven. Why run the risk that your baby decides that Christianity is bunk when they grow up?

    Catholics are far more evasive on who gets to go to Hell. Apparently, some Catholic theologians believe that even atheists can make it to Heaven if they are honestly “seeking the truth” (whatever that means). You have to be in a state of mortal sin to go to Hell (otherwise its just a stint in Purgatory for you) and even then they say it’s perfectly possible for God to save someone from Hell after they have arrived there, so the punishment is not eternal.

    It’s with good reason that only a minority of Christians believe in a literal unending Hell for non-believers these days. If such a thing were true, then it makes God infinitely worse than Stalin or Hitler (yeah, Godwin’s Law, etc.) since at least the suffering of the victims of earthly dictators quickly comes to an end when they die. No such luck in Hell.

  14. eric says

    Scalia’s got even the theology wrong. The death penalty should be a bigger deal for a believer than an atheist.

    If, as a Christian, you kill a nonbeliever, then you have guaranteed them an eternity of suffering whereas if you had shown mercy, they might have (eventually) repented and been saved. Killing someone is like permanently shutting their door to missionaries/evangelists. No good Christian should want to shut someone else’s door to the word of (their) God.

  15. whheydt says

    I don’t hold any particular brief for a death penalty, but I do think that, if you’re going to have one, the manner in which it is applied should be consistent with reasons, in any particular case *why* it is to be used.

    I can think of three general categories of reasons for a death penalty to be imposed. They are: (1) Deterrence to prevent others from committing the same acts. Yes, there are studies saying it doesn’t work, but it’s a *reason* to use the penalty. (2) Revenge. Provides closure (in some cases) to the victims or the victims friends and relatives. (3) What I refer to as the “mad dog” situation. The person to be executed is considered so dangerous, so likely to reoffend, that it is deemed too dangerous for him *ever* get loose.

    In case 1, the appropriate means of execution would be public, nasty, painful, and messy. You want others that might be tempted to commit the same crime to know what’s in store for them.

    In case 2, the execution should be private, painful, nasty, and messy. Only allow those directly (adversely) affected by the original crime to be present. It’s not a public spectacle.

    In case 3, the execution should be private, quick and painless. You are putting the condemned “out of his misery” and it should have the minimum of trauma, much as you would “put down” an animal in as humane a manner as you can arrange.

    Note that I do not try for any theological support for any of this. In addition, much of this–if actually attempted–would fail the Constitutional test barring “cruel and unusual punishment”. When I present these ideas to people, I use it as a vehicle to explore the questions, if you support capital punishment, WHY do you want the condemned executed, and shouldn’t you support a method appropriate to your reasoning?

    –W. H. Heydt

    Old Used Programmer

  16. says

    All those cases have very little merit. As you say, there is plenty of evidence to show that the death penalty has very little deterrent effect. Revenge killing, with people baying for blood, is the most honest reason, but once you open the door to vengeance, where does it stop? And there is absolutely no argument for needing the death penalty for even the most dangerous perps in these days of high security prisons in a modern democratic society. That is about the least of our problems with the prison system.

  17. fastlane says

    Aquaria@13, I think, like calling the pope a Nazi, your view of Thomas is a bit off. Ed has written quite a few posts about the sometimes rather significant disagreements between the two.

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