Scalia and JFK

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In his speech to the Houston Ministerial Association in 1960, John F. Kennedy famously declared:

I do not speak for my church on public matters; and the church does not speak for me. Whatever issue may come before me as President, if I should be elected, on birth control, divorce, censorship, gambling or any other subject, I will make my decision in accordance with these views–in accordance with what my conscience tell me to be in the national interest, and without regard to outside religious pressure or dictates. And no power or threat of punishment could cause me to decide otherwise.

But if the time should ever come–and I do not concede any conflict to be remotely possible–when my office would require me to either violate my conscience or violate the national interest, then I would resign the office; and I hope any conscientious public servant would do likewise.

Speaking at the Duquesne Law School a couple of days ago, Antonin Scalia invoked a different standard: “If I thought that Catholic doctrine held the death penalty to be
immoral, I would resign. I could not be a part of a system
that imposes it.”

Kennedy’s position has over the years drawn increasing criticism, especially from conservatives, for seeming to reject the influence of one’s religious tradition on one’s approach to public service. But Scalia himself cannot allow his religion to have any role in shaping his jurisprudence. As he said at Duquesne:

What does it mean to be a Catholic law school? There is no such
thing as Catholic law. The law is no different for a Catholic
than it is for a Jew any more than it is different for a woman or a man
or a white man or a black.

Thus it is that I am sometimes embarrassed when sincere opponents of
abortion sometimes thank me for championing their cause. … I do not
champion their cause. The Constitution addresses the subject
not at all, which means that it is left up to the states.

What he has done, then, is make his church’s doctrine do the work that Kennedy assigned to his conscience, and in the process fibbed. As Dan Burke over at RNS and John Gehring at Faith in Public Life have pointed out, from the Catechism to papal declaration to bishops’ and theologians’ pronouncement, the Catholic magisterium has strongly opposed the death penalty, both as a general practice and in particular cases. The wiggle room provided for judicial execution (if it is “the only possible way of effectively defending human lives against the unjust aggressor”) plainly does not apply to the system of which Scalia is a part. To think that he is unaware of all this strains credulity, to put it mildly.

It is pleasant to imagine Pope Benedict writing the following “Dear Antonin” letter:

It has come to our attention that you have gone to a Catholic law school and suggested that the Church does not consider the death penalty to be immoral. For someone in your position to make such a claim is distressing and, to be candid, a bit of a scandal–i.e. likely to lead members of our faith to believe that we do not teach what we do in fact teach. So for the record, Catholic doctrine does consider the death penalty, as it exists in your country, to be immoral. We trust that you will cease characterizing our position in any other way. Of course, whether you choose to resign your position on the U.S. Supreme Court as a result is a matter for you to resolve with your conscience.

Which would, of course, be the JFK standard.

  • the Catholic magisterium has strongly opposed the death penalty
    I’m afraid this is incorrect, Dr. Silk. There is much misunderstanding about the Roman church’s teachings on social science, and I’m a bit crestfallen when I see it misrepresented for partisan purposes, say, and attack on Antonin Scalia.
    In this case, as opposed to abortion, which is seen as inherently evil, capital punishment falls short of inherent evil, i.e., immoral. As Profs. Charles Reid and Greg Sisk write:
    Within the last few decades, a growing number of civilized countries have developed refined criminal justice systems, in which incarceration of violent offenders offers secure protection of society from criminal predation. This modern political development has led the Church to reappraise the validity of execution. If lethal measures are no longer necessary for societal protection, then they become difficult or impossible to justify when other available means of punishment are “more in conformity with the dignity of the human person.” This deduction regarding the legitimacy of the death penalty in societies with well-structured penal systems, while appearing to be that of a growing consensus among Catholic prelates and theologians, has not yet solidified into the kind of teaching that can be said to be believed semper et ubique (“always and everywhere”), and thus to be regarded as part of the ordinary Magisterium. It may well be that Church preaching and teaching on this subject will develop into a categorical directive for modern circumstances, or at least may resolve into an unequivocal condemnation of the frequent and unreflective resort to execution that prevails in certain regions of this country. That day, however, has not yet come.

  • Mark Silk

    I didn’t say, Mr. Van Dyke, that the Church opposes the death penalty “semper et ubique”–always and everywhere. I did say, and the Catechism is sufficiently clear, that it opposes the death penalty in places like the United States–the “system” of which Justice Scalia is a part.

  • Dr. Silk: The question is the magisterial authority of the Church here. Capital punishment falls short. Scalia is not afoul of the Church: not all normative teaching is magisterial. Scalia is not afoul of his church here.

  • Mark Silk

    Mr. Van Dyke: Where is it written that magisterial authority must be “semper et ubique”? Where is it written that not all normative teaching is magisterial? And if Scalia is “merely” in disagreement with his church’s normative teaching, doesn’t that make him afoul with his church? Just asking.

  • Dr. Silk, I think you don’t have this one right.
    Where is it written that not all normative teaching is magisterial?
    I believe an accredited expert could suss this out for you. Unfortunately, I’m not that person. If you’re interested in getting this right, I’m sure you’ll inquire further with authoritative sources, perhaps an email to the professors I cited above.
    But the Roman church does permit dissent from some of its normative teachings [capital punishment, although not abortion], or else there would be no possible progress in theology as a whole. Contrary to popular belief, the Roman church is not all follow-the-dots. Just mostly.

  • Mark Silk

    OK, Mr. Van Dyke, I think we’re in agreement. Justice Scalia dissents from his church’s normative teaching on the death penalty. And if he admitted as much, I’d have nothing to criticize. 🙂

  • Tom Van Dyke

    Dr. Silk, I can only hope we do have a genuine meeting of the minds here. As an admirer of your work and basic honesty and decency, I brought only a feather and left the hammer at home.
    If I may expand a bit in the interest of clarity alone, Burke and Gehring were unfair to the point of being unprincipled:
    First to how the Roman church goes about its business these days. Roman Catholic social science, as it has been called, is not synonymous with the papal claim of infallibility nor its claim to “magisterial” authority. The latter apply only to faith and morals and to interpretation of the Bible respectively.
    On morals, the Church has invoked its claim to authority on abortion, but not capital punishment. Its position on the latter re America is via social science—to advise our polity but not to command it—that capital punishment is unnecessary because of its capricious application.
    [For the record, I happen to be in conscientious agreement, not because of the Church’s authority on such things, but because I find its argument sound.]
    But the Church does not argue that it’s infallible here: hence one may disagree in good conscience. Capital punishment is not in conflict with the Bible, nor is it held as inherently immoral. And this is what Antonin Scalia said.
    Burke and Gehring [Gaius and Titius, if you will] use Roman Catholic social science as a bludgeon against Scalia, in unacceptable ad hom, that he is a shallow man, a hypocrite.
    This is wrong, wrong, wrong. Especially wrong is judging the man from a few quotes in a newspaper story.
    To the contrary, if we are to understand Scalia the man as he understands himself, his position is the result of manifestly deep and lengthy soul-searching. He clearly states that he values his Catholic conscience above his position on the Supreme Court. Were the [his] Roman church declare tomorrow ex cathedra or magisterially that capital punishment is inherently immoral, that ethically [see Aquinas here] one cannot cooperate with evil, then he would not substitute his own conscience for United states law, and out of principle would be obliged to resign.
    His statement, albeit caricatured by Gaius and Titius for their own partisan purposes, is a confession of his first principles: He can continue in office only if he believes he can uphold the laws and Constitution of the United States without violating his Catholic conscience.
    Respecting both his faith and his office: were upholding the Constitution and the duly passed laws of the United States come to be in conflict with his loyalty to the Roman church and the Magisterium, he would be obliged by conscience to resign from the Supreme Court. The informed conscience cannot cooperate with evil by any ethical system.
    That’s what the man was saying, and it is admirable, not risible, and anything but hypocritical.
    As Mike Stipe said in “Losing My Religion,” oh no, I’ve said too much; I haven’t said enough. Or that’s how it feels on this end, Mark. Thank you for your hospitality.