God, Death and Justice Scalia

August 12, 2002

SUPREME COURT Justice Antonin Scalia, in a recent article published in a religion journal called First Things, offered thoughts on the moral foundations of the death penalty and the relationship between God and the democratic state. Justice Scalia is one of the court's most impressive intellects: His views command attention. In this instance, they are striking for a different reason: their radicalism.

 The purpose of Justice Scalia's article, published in May and adapted from an earlier speech, is not to defend the death penalty -- about which the justice professes neutrality -- but to argue "that I do not find [it] immoral." In doing so, Mr. Scalia -- a devout Catholic -- aligns himself with the moral views of St. Paul, whom he paraphrases as saying "that government . . . derives its moral authority from God. It is the 'minister of God' with powers to 'revenge,' to 'execute wrath,' including even wrath by the sword (which is unmistakably a reference to the death penalty)." This view of government, the justice acknowledges, was complicated by the emergence of democracy. But, he insists, "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."

 This ambiguous statement is disturbing. America is a society built around suspicion of government action, not worship of it. The source of power is popular sovereignty, not a divine right to rule. While popular sovereignty -- as the Declaration of Independence announces -- presupposes that the people were "endowed by their creator" with their rights, the American state was not conceived as an arm of God.

 Almost as remarkable is Justice Scalia's contempt for the past century of Supreme Court opinions concerning the meaning of the Eighth Amendment's ban on "cruel and unusual punishment." He laments the court's decisions, for example, abolishing the death penalty for crimes other than murder and imposing age limitations on the penalty's application. These are examples of the "living Constitution," he sneers, the idea that the scope of the prohibition shifts with society's judgments about cruelty. In his view, the Constitution "is not living but dead -- or, as I prefer to put it, enduring." It prohibits only those torturous deaths that it banned when adopted. The death penalty "was clearly permitted when the Eighth Amendment was adopted (not merely for murder, by the way, but for all felonies -- including, for example, horse-thieving, as anyone can verify by watching a Western movie). And so it is clearly permitted today." Translation: Execute children for shoplifting? Fine by the Constitution.

 The Court rejected the static vision of the amendment as far back as 1910. Justice Scalia refights an old, and long-lost, battle. Since he has neither sought to reopen this battle in his judicial opinions nor assert that the government's source of power is divine, it may be wrong to put too much weight on the views expressed in this article. But they are worth bearing in mind, the next time Justice Scalia pronounces on the death penalty or on the relationship between church and state.