October 6, 2015

"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.... The post-Freudian secularist... is most inclined to think that people are what their history and circumstances have made them, and there is little sense in assigning blame.... You want to have a fair death penalty? You kill; you die. That's fair. You wouldn't have any of these problems about, you know, you kill a white person, you kill a black person. You want to make it fair? You kill; you die.... In my view... 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.... I am happy to have reached that conclusion [that the death penalty is not immoral] because I like my job and would rather not resign."

Said Justice Scalia, back in 2002. The part I've boldfaced was quoted in Slate yesterday, which links to the longer quote at (of all places) the World Socialist Web Site. The WSWS calls Scalia's statement "reactionary drivel." The Slate article, by Dahlia Lithwick is: "Pope Francis’ Message Isn’t Echoed at Red Mass/A reminder that the only faith that should matter at the Supreme Court is faith in the Constitution."

Lithwick speculates about why Justice Scalia did not show up for the Pope's lecture to Congress. That is... she doesn't speculate.... she only observes that "there was some inevitable speculation" that Scalia stayed away because he didn't want to have to be seen hearing the Pope call for the abolition of the death penalty.

But nothing in that Scalia quote is an objection to the abolition of the death penalty! I hope you can already see why, and I hate be to so pedantic as to spell out something so obvious, but Lithwick seems not to get it. She's probably only pretending not to get it, but it's significant that she doesn't mind posing publicly in the position of someone who doesn't get it.

Scalia is talking about how he can continue to be a judge when he's forced to decide death penalty cases and must decide them according to the Constitution, which, in his view, cannot be interpreted to ban the death penalty. As a judge, he's bound by the limitations of judging, which preclude importing his religion into the analysis, and at some point, his religion might require him to resign from the Court. He's explaining why he does not need to resign. There's utterly no reason to interpret that to mean he'd object if Congress or any state legislature were to pass a statute abolishing the death penalty.

There's more detail in this earlier post, from 2005, which quotes another speech of Scalia's in which he explained the difficulty which "need not be faced by proponents of the living Constitution who believe that it means what it ought to mean. If the death penalty is immoral, then it is surely unconstitutional, and one can continue to sit while nullifying the death penalty. You can see why the living Constitution has such attraction for us judges."

"Death is no big deal" wasn't a statement of callousness toward the convicted murderers our government executes. It's an observation about the mindset of societies that choose to keep the death penalty as part of their statutory law, the law that judges can only invalidate if it is unconstitutional.

50 comments:

Hammond X. Gritzkofe said...

Just think of it as post-natal abortion. The "problem" disappears.

Michael K said...

Lefties only like pre-delivery death penalties.

Ann Althouse said...

So... abortion jokes. That's where you go with this?

Jane the Actuary said...

So here's the thing: it seems to me that in our increasingly-secular society we have actually moved *closer* to "death is no big deal," that is, there is now an ever-growing list of things that are perceived of as "worse than death" -- from the suffering of a terminal illness, to the need to be dependent on someone for basic needs, or, let's face it, the abortion calculus that sees a woman's happiness that's perceived of as being at risk if she has a child, as more important than that child's life.

Curiously (to me), I wrote a post about this a while back which my pageview analytics tell me people still happen on occasionally, based presumably upon some google search, and I wish I was clever enough to figure out how to use the analytics site to tell me who those people were and what they were looking for.

Now, it wasn't the most brilliant thing I've ever written, because you could argue the opposite, that we value human life more, in our objection to civilian deaths during wars. But nonetheless it seems like atheists are more likely to promote suicide as an answer to sickness, not less.

Jane the Actuary said...

And I thought I would be clever and put in a hyperlink, but messed up the formatting. Let's try that again:

http://www.patheos.com/blogs/janetheactuary/2015/03/worse-than-death.html

Bob Boyd said...

Not sure his "the more Christian a country is" analogy works.
For example, in officially atheist USSR and Maoist China people were sentenced to death by the millions.

machine said...

"As a judge, he's bound by the limitations of judging,..."


except when he isn't...

Anonymous said...

...but Lithwick seems not to get it.

You could stick that phrase into a post about any Lithwick piece and it would work.

She's probably only pretending not to get it....

I quit reading anything she wrote years ago, as her chronic "pretending" not to get it (whatever "it" happened to be) led me to the conclusion that she was "pretending" to be not very bright, and thus not worth reading.

Jeff said...

Althouse said:

"So... abortion jokes. That's where you go with this?"

Lithwick is not illiterate, so she knows what she is writing is misrepresenting what Scalia said. So, you can either call her a liar or you can laugh at her and her ilk. The latter is less boring than the former.

Freder Frederson said...

So Scalia's view locks in the morality of the late eighteenth century. That makes no sense at all. Slavery is certainly immoral yet it was enshrined in the constitution. It took a war that cost 500,000 lives to correct that.

If he claims that the death penalty must be moral because it is enshrined in the constitution, then he is indeed putting more faith in man than God. If so, he is a very bad Catholic.

Freder Frederson said...

Oh, and I don't understand the "Lithuania" tag.

Grant said...

I think "Lithuania" must be next to "Lithwick" in the Althouse tag universe.

Beloved Commenter AReasonableMan said...

Given that the entire religion is based around the denial of death (the resurrection) it is difficult to argue convincingly that its supplicants view death as 'no big deal'.

Ann Althouse said...

On the subject of punishments worse than death, I have a long footnote in an article (PDF) I published back in 1991:

"This preference for death over prison is scarcely bizarre. Gilmore's decision, as reported in The Executioner's Song, seemed entirely sane and rational, given his long experience of the reality of prison life. Popular songs have long portrayed a life sentence as worse than execution. See G. Brooks, "Send Me to the 'Lectric Chair" (Mills Music, Inc. 1927) ("Now I don't want to bondsman here agoin'on my bail,/And I don't wanna spend them nine and ninety years in jail;/So judge, judge, good kind judge,/Send me to the 'lectric chair."); M. Haggard & J. Sanders, "Life in Prison" ("I begged they'd sentence me to die/But they wanted me to live and I know why – My life will be a burden every day/If I could die, my pain might go away."). And Patrick Henry said, "give me liberty or give me death!" to the 2d Revolutionary Convention in Virginia, March 23, 1775 (cited in 14 ENCYCLOPEDIA AMERICANA 108 (1986)), a sentiment the state of New Hampshire compels its drivers to bear on their license plates. See Wooley v. Maynard, 430 U.S. 705 (1977) (Court straining the doctrine of Younger v. Harris, 401 U.S. 37 (1971), to bar prosecution of the nonconformist couple who took offense at the slogan "Live Free or Die" and covered it up with tape); see also Cruzan v. Director, Mo. Dep't of Health, 110 S.Ct. 2841, 2885 (1990) (Stevens, J., dissenting) (citing Patrick Henry's quote in recognizing a "right to die"). For further discussion of the Cruzan case, see infra note 57.

"The most widely venerated refusal to fight the death penalty was that of Jesus: "Pilate questioned him again: 'Have you nothing to say in your defense? You see how many charges they are bringing against you.'But, to Pilate's astonishment, Jesus made no further reply." Mark 15:4-5. Like Gilmore, Jesus withdrew from the process the law afforded him and accepted execution. Why has Jesus' choice inspired reverence and Gilmore's scorn? Gilmore turned his back on a legal system we still support and view as a source of justice; Jesus turned his back on a legal process we consider corrupt and evil. Perhaps it is not that we despise the acceptance of death, but that we judge an expression of contempt of the legal system in accordance with our opinion of that system. Socrates is also famous for accepting the death penalty. See Plato, Crito, reprinted in Plato, THE LAST DAYS OF SOCRATES 53-70 (H. Tredennick trans. 1954). Unlike Gilmore and Jesus, however, Socrates did not refuse any available step in the legal process. He refused the extralegal step of escape and argued against violating the law in a legal system that had wronged him. Thus, he expressed the very antithesis of contempt for the legal system.

"The most obvious explanation for the scorn directed at Gilmore is simply that in judging him, we cannot separate his preference for death from the fact that he was a murderer, just as we cannot separate our judgment of Jesus and Socrates from our knowledge that they committed no offense we can remotely understand as punishable by death. Whereas Jesus and Socrates were great men we would never have condemned, Gilmore was a social excrescence whose demise relieves us (judgment takes place in context, not in the abstract). Or perhaps, at least for those who support the death penalty, scorn for Gilmore's choice expresses frustration that he somehow destroyed the state's power to punish. Someone who prefers death will only be killed by execution – not punished. Gilmore is incomparable with Jesus and Socrates for any number of reasons, but among those reasons is that only Gilmore deprived us of whatever satisfaction attaches to social vengeance."

Ann Althouse said...

LOL about the absurd search for Lithuania in all this.

Hammond X. Gritzkofe said...

So... abortion jokes. That's where you go with this?

Think again Ann. It is no joke.

Whether legal life begins at conception or at parturition, is a legal distinction; mutable by a change in the law.

The real problem is overgrown Government, and Government trying to legislate morality. The body of laws eventually becomes so large and self-conflicting as to become unworthy of respect. This is followed by disrespect of Government, then disposal of the Government.

A factor common among recent "gun masacres" is young men raised by single women. Therefore we need laws prohibiting single women from raising boys. Makes as much sense as prohibiting gun possession.

Violent crime is most prevalent in neighborhoods with high incidence of single mothers. Solution: mandatory abortion excepting only committed adult heterosexual relationships.

Government confiscates money from the People, paying companies to erect windmills. Simultaneously Government fines those companies because the windmills kill migratory birds.

We are beyond "everything not mandatory is prohibited," and well into the territory of activity mandated by one law being prohibited by another. This leads to a confused, conflicted, and eventually rebellious citizenry.

The answer is for Government to take fewer tasks upon itself.


OK, perhaps you intended a different direction from your posting, Althouse. My comment was not intended as a joke.

D.D. Driver said...

I quit reading anything she wrote years ago, as her chronic "pretending" not to get it (whatever "it" happened to be) led me to the conclusion that she was "pretending" to be not very bright, and thus not worth reading.

Me too. As a former lawyer, she should at least understand every argument whether she agree with it or not. "Easy" cases rarely make it all the way to the Supreme Court. She lacks the ability to grapple with complex issues (i.e., like those presented in just about every case that makes it all the way to the Supreme Court) except on strawman terms.

Birkel said...

Once the author hits publish, it seems odd to object to what others would write in response. There is no ownership except an opportunity to delete.

The comments of the Leftists seem at least as out of place as the abortion comments. Are we grading on a curve because we know the Leftists cannot achieve competence?

traditionalguy said...

Since Noah rode out the Flood, the natural inclination of men to murder men has been recognized to have only one restraint, the recompense of you kill one of ours and we kill one of yours and then it is over.

A murder for a murder. Got that. Yes men who love to murder( like theNazi cult guys) get that. Them getting that is the goal.

Ergo: those for outlawing the death penalty are pro-Nazi, as are most sweet Europeans that delivered the Jews to the local Auschwitz Express trains as fast as possible in 1944 after it was clear the Nazi State would end soon.


Big Mike said...

Saudi Arabia is a Christian country? I must have missed that memo.

CStanley said...

I have to agree with. ARM. I don't see how you can argue that. Christians view death as "no big deal."

And I don't understand the objection to discussion of abortion here (or was the objection just to the perceived jokiness?) Abortion and the death penalty are both about the sanctity of life, and both are the issues that practicing Catholics (or other. Christians) might have difficulty with in a secular culture.

jr565 said...

"So... abortion jokes. That's where you go with this?"
I don't see why they're off the table.

AJ Ford said...

I try to read writers with a different point of view on issues, but it is increasingly difficult to read Dahlia Lithwick on almost any subject. She either obscures or ignores anything that differs from her beliefs or conclusions. There is no meaningful insight or discussion of the reasoning of a differing position - ironic when the position takes the form of a legal opinion which has set forth its reasoning and could easily be discussed point by point, substantively.

Coincidentally, I listened this morning to Ms. Lithwick's Podcast Amicus about the Supreme Court's history with the Voting Rights Act. Her gues was Ari Berman, author of the new book Give Us the Ballot: The Modern Struggle for Voting Rights in America. During the entire podcast, which focused in no small part on Shelby County v. Holder, there was no discussion of the reasoning used by the majority. Instead, the listener is lead to believe that Chief Justice Roberts as been gunning for the statute for 30 years and finally got a chance to kill it.

I don't dispute that justices may have a point of view on a particular issue or statute - perhaps even an obsession - but at the end of the day their decisions have some sort of legal reasoning behind them to reach the conclusion. If someone with a differing opinion cannot take the time to analyze and attempt to refute the reasoning, what business do they have expressing an opinion that purports to be legal analysis?

I guess anyone can write a book or have a podcast. I just hate this sort of pablum forms the basis for most people's political points of view. The right and left are equally guilty, but I'd like to think a specialty podcast on the subject of supreme court decisions would have a bit more substance to it.

jr565 said...

What about locking people in jail for life with no possibility of parole. Do we generally fin holding people agains their will to be immoral? Sure. But as a punishment for committing a heinous crime we are ok with it. Would any say that the punishment for kidnapping someone and holding them agains their will shouldn't be jail time? It's the same thing.
What if we get the wrong guy though and he languishes in prison till he dies. Or he gets shanked in prison or raped. Does that invalidate the need to send people to prison for crimes? I don't think so.
Now maybe we can change the law so that only the worst of the worst get executed. But do I have any problem with a Ted buddy dying? Not at all. I hope he was scared shitless right before he went.

James Pawlak said...

Europe as Christian??? It had already committed to a Secular-Atheist style AND is now being taken over by overt/covert wagers of Jihad.

Freeman Hunt said...

In a college class a British professor inficated that he thought the United States backward for maintaining the death penalty. He asked if anyone supported it. Two of us raised our hands. "I assume you're Christians." We were both atheists.

The death penalty is about justice not a nonchalant attitude about life and death.

The Godfather said...

@Freder Frederson: It is not the case that "Slavery . . . was enshrined in the constitution." Unless, that is, you believe that Dred Scott was correctly decided. I think Lincoln had the better argument, that, although the Constitution did not prohibit States from allowing slavery within their borders, and it took a Constitutional Amendment to change that, the Constitution gave no legal or moral sanction to slavery.

Biff said...

The thing that often is left out is that the death penalty actually polls pretty well among the general population in many European countries, with majority support for it in the UK others. However, as with many topics in the EU, popular opinion does not necessarily translate to governing principle. Europe is nowhere near as ideologically monolithic as are its elites.

Sigivald said...

[...]but Lithwick seems not to get it. She's probably only pretending not to get it,[...]

She sure seems to "pretend" to not get things a whole lot.

I've long since stopped believing she's pretending, myself.

cubanbob said...

Contrast and compare the numbers of those executed versus the numbers of those aborted in the last forty years. So Althouse implies that carrying out a lawful punishment for a heinous crime is immoral but killing someone because their existence is inconvenient is acceptable. One thing is for sure, no kid killed in the womb has ever committed a capital crime. So the more secular a society the more encouraging suicide for the ill is acceptable, abortion is acceptable but executing those found guilty of capital crimes not acceptable. Who wants to argue that is progress?

Robert Cook said...

"'So... abortion jokes. That's where you go with this?'

"I don't see why they're off the table."


Perhaps Prof. Althouse would simply prefer that commenters interested enough respond to subjects she posts make thoughtful remarks about the subject at hand--whatever their view--rather than to make quips that are mere noise intended to grind their particular axe, or, often, just to shout, "Look at me! Look at me!"

Jason said...

Pointing out liberal degeneracy and hypocrisy is ALWAYS on the table.

I can see why you find that uncomfortable, dearie.

Fred Drinkwater said...

Biff: yes, I was just about to make that same point. I'm having a hard time reconciling those polls with Scalia's implication in the second sentence quoted.

CStanley said...

@Freeman- I don't understand the justice argument. Do you still hold that view?

n.n said...

Death is a really big deal for Christians, and of varying significance for people of other faiths. For Christians, there is judgment. For others there is a diverse array of options including oblivion.

Killing is killing is killing.

Elective abortion is the premeditated termination of a wholly innocent human life. There is only one mitigating circumstance: the life of the mother, and that rarely precludes the life of the child.

Capital punishment is the premeditated termination of a human life that has taken another life. The concern is that cause has not been been established to a sufficiently rigorous and uniform standard.

An objective perspective is killing without cause, especially premeditated killing (e.g. elective abortion), serves to debase or destroy the intrinsic or exceptional value of human life.

Big Mike said...

She's probably only pretending not to get it, but it's significant that she doesn't mind posing publicly in the position of someone who doesn't get it.

Why do you think Dahlia Lithwick is "only pretending not to get it"? Because she's a woman and therefore must be too smart not to get it?

Freeman Hunt said...

"I don't understand the justice argument. Do you still hold that view?"

The justice argument is that there are crimes for which there can be no justice without the death penalty. (And further, that ignoring the service of justice by outlawing the death penalty delegitimizes the law.)

Yes.

We expect people to give up personal exercise of vengeance in exchange for the law. But if the law doesn't even attempt to serve jistice, why should they?

Nichevo said...

Oh. Where we go with this? Ok:

"She's probably only pretending not to get it, but it's significant that she doesn't mind posing publicly in the position of someone who doesn't get it."

That would be you, Althouse.

CStanley said...

I guess Freeman I disagree because I don't think justice requires vengeance. People are entitled to the former but not the latter IMO.

rcocean said...

The idea that Capital Punishment is "Unchristian" is fairly new. Its a 20th century invention. I don't see any basis for it in the Bible.

21st Century Liberals - like Hillary - supports death for 8 month old babies but opposes death for serial killers. What freaks.

rcocean said...

What's more absurd then an atheist who believes in "turning the other cheek" and wants his killer to live?

Grant said...

Many early Christians were against the death penalty.

Freder Frederson said...

The idea that Capital Punishment is "Unchristian" is fairly new. Its a 20th century invention. I don't see any basis for it in the Bible.

The idea that slavery is "unchristian" is fairly new. It's a 19th century invention. I don't see any basis for it in the Bible.

BTW, the Bible also doesn't say anything about abortion.

Freder Frederson said...

What about locking people in jail for life with no possibility of parole. Do we generally fin holding people agains their will to be immoral? Sure. But as a punishment for committing a heinous crime we are ok with it.

You may be okay with it, but I, and many others, certainly think life with no possibility of parole is immoral/

Freeman Hunt said...

I guess Freeman I disagree because I don't think justice requires vengeance.

I never said it did. I think there are crimes for which the only just punishment is the death penalty. Real vengeance would include things far worse.

Jason said...

BTW, the Bible also doesn't say anything about abortion.

Great. Another arrogant, semi-literate, undereducated fool who projects his sola scriptura hangups on everybody else. Go ahead, dummy. Jerksplain some more about religious obligations you don't understand. I'm all ears.


Freder Frederson said...

Great. Another arrogant, semi-literate, undereducated fool who projects his sola scriptura hangups on everybody else. Go ahead, dummy. Jerksplain some more about religious obligations you don't understand. I'm all ears.

Very nice insult. Now take a breath and tell me where in the Bible abortion is mentioned. I was responding directly to rcocean, who specifically referenced the Bible as approving of the death penalty (which he is right about, but the Bible also condones slavery and a whole lot of other things most of us would consider unchristian).

CStanley said...

The idea that justice can't be served without the death penalty strikes me as a sanitized version of vengeance. YMMV (and I assume it does, but I just don't see it.)

I get that justice requires proportionality, and that this seems inadequate when two different murders both carry the highest punishment of life without parole even though one may have been far more grisly and evil. But it's the end of the spectrum for a reason: because purposefully taking a life is itself an evil act, with very few exceptions that all involve self defense IMO. The state as a representative of the citizens can demonstrate that all human life has intrinsic value by refraining from executing even those who carry out horrific acts.

Again, I realize you disagree, but that's my viewpoint.

Jason said...

Me: Great. Another arrogant, semi-literate, undereducated fool who projects his sola scriptura hangups on everybody else. Go ahead, dummy. Jerksplain some more about religious obligations you don't understand.

Feeder: Now take a breath and tell me where in the Bible abortion is mentioned.

SWISH!!!!

That was the point sailing right over your head.

CStanley said...

Frederick: abortion isn't mentioned in the Bible but there are dozens (at least) references to the unborn as living beings, created by Go and known by Him as opposed to being part of the mother's body or clumps of cells.