July 8, 2002
ONCE THERE WAS A PRINCETON :
From Justice Scalia, a Chilling Vision of Religion's Authority in America (SEAN WILENTZ, July 8, 2002, NY Times)Mr. Scalia seems to believe strongly that a person's religious faith is something that he or she (as a Roman Catholic like Mr. Scalia) must take whole from church doctrine and obey. In his talk in Chicago, Mr. Scalia noted with relief that the Catholic Church's recent opinion that the death penalty was very rarely permissible was not "binding" on Catholics. If it had been, Mr. Scalia said, this teaching would have led the church to "effectively urge the retirement of Catholics from public life," given that the federal government and 38 states "believe the death penalty is sometimes just."Mr. Scalia apparently believes that Catholics, at least, would be unable to uphold, as citizens, views that contradict church doctrine. This is exactly the stereotype of Catholicism as papist mind control that Catholics have struggled against throughout the modern era and that John F. Kennedy did so much to overcome. But Mr. Scalia sees submission as desirable--and possibly the very definition of faith. He quotes St. Paul, "For there is no power but of God: the powers that be are ordained of God."
"The Lord," Mr. Scalia explained in Chicago, "repaid--did justice--through His minister, the state."
This view, according to Mr. Scalia, once represented the consensus "not just of Christian or religious thought, but of secular thought regarding the powers of the state." He said, "That consensus has been upset, I think, by the emergence of democracy." And now, alarmingly, Mr. Scalia wishes to rally the devout against democracy's errors. "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," he said in Chicago.
Mr. Wilentz is, of course, precisely wrong about John F.
Kennedy and American fear of a Catholic president. The concern was not that JFK would resign the presidency if his Catholicism came into conflict
with democratic principles--this would have been entirely honorable and reasonable on his part--but that he would seek to impose Catholic doctrine in the place of ideas arrived at democratically.
In fact, it's hard to see why Mr. Scalia's essay gave Mr. Wilentz such a case of the vapors. Here's what the Justice wrote in God's Justice and Ours (Antonin Scalia, May 2002, First Things) :
[W]hile 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.
Now suppose, for a moment, that instead of capital punishment, he were talking about a fugitive slave act, which called for the Court to help send escaped slaves back to their masters. Can we not easily perceive how someone's moral and religious duties would make it impossible for them to enforce this law, even though it were a legal and proper statute? In such a case wouldn't it be appropriate for a judge to resign when he was called upon to betray his moral self? What kind of person--believing blacks to be equal human beings, despite a political consensus that they were not--could enforce such a law? And if the Catholic Church taught that blacks were indeed fully human, could a judge ship them back into slavery and still consider himself to be a good Catholic? More importantly, could he consider himself to be a decent person?
Meanwhile, we'd do well to recall that Mr. Wilentz was one of the organizers of the gang of 400 liberal historians who published an open letter during the Clinton Impeachment in which they argued that even perjury and obstruction of justice were not impeachable offenses, so it seems fair to wonder whether the good professor feels that there's any room for morality in public life. Mr. Wilentz expresses his fear of Justice Scalia's ambivalence about democracy--an ambivalence that the Framers actually wove into the Constitution. But isn't Mr. Wilentz's own willingness to have public figures check their morality at the door of the polling place and the legislature a far more frightening prospect?
MORE :
Christian Faith and Modern Democracy: God and Politics in the Fallen World (2001) (Robert P. Kraynak 1949-)