How Scalia Judges Based On Faith-Based, Religious Metaphysics

The blog Doggy Style quotes Justice Antonin Scalia making a disturbing analysis in 2002:

“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.”

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.

Finally, and no less importantly, notice how his dogmatic, religious convictions about the nature of freedom and the justice of punishment are asserted in defiance of any rational reconsideration. He mischaracterizes and trivializes secular interests in justice and proper punishment. He waves away legitimate questions about how free people really are, and how best to morally and legally appraise and treat them in light of such actual facts about their actual freedoms or lackthereof. A dogmatic, explicitly religiously derived metaphysics and theory of justice, which he refuses to revise in the light of new evidence, guides his judgments of fairness. There shall be no insights into the actual mechanisms of psychological determination or the morally fairest and therapeutically most effective ways to punish and/or reform people in light of such neuroscience and behavioral science. There shall only be the cosmic tale of struggle between good and evil and the merciless wrath of God’s justice for those wicked souls who choose the path of temptation out of their magically unconstrained free wills.

This is a scary travesty. These are the kinds of consequence that fantastic, dogmatically held, faith beliefs (that no one supposedly ever takes literally) can have. This is why some of us atheists think it is a big deal what people believe—even if their beliefs sound so ludicrous that no modern person in his or her right mind would ever be expected to make practical decisions based on them in fact.

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About Daniel Fincke

Dr. Daniel Fincke  has his PhD in philosophy from Fordham University and spent 11 years teaching in college classrooms. He wrote his dissertation on Ethics and the philosophy of Friedrich Nietzsche. On Camels With Hammers, the careful philosophy blog he writes for a popular audience, Dan argues for atheism and develops a humanistic ethical theory he calls “Empowerment Ethics”. Dan also teaches affordable, non-matriculated, video-conferencing philosophy classes on ethics, Nietzsche, historical philosophy, and philosophy for atheists that anyone around the world can sign up for. (You can learn more about Dan’s online classes here.) Dan is an APPA  (American Philosophical Practitioners Association) certified philosophical counselor who offers philosophical advice services to help people work through the philosophical aspects of their practical problems or to work out their views on philosophical issues. (You can read examples of Dan’s advice here.) Through his blogging, his online teaching, and his philosophical advice services each, Dan specializes in helping people who have recently left a religious tradition work out their constructive answers to questions of ethics, metaphysics, the meaning of life, etc. as part of their process of radical worldview change.

  • Didaktylos

    I would think that a deity who was just would be pretty pissed off at being expected to sort out the mess when a wrongfully convicted person ended up being executed because some boneheaded legal literalist refused to allow evidence of that innocence to even be formally considered.

  • ‘Tis Himself, OM

    Scalia makes a big deal of his Catholicism yet ignores Pope John Paul II’s encyclical Evangelium Vitae

    It is clear that, for these purposes to be achieved, the nature and extent of the punishment must be carefully evaluated and decided upon, and ought not go to the extreme of executing the offender except in cases of absolute necessity: in other words, when it would not be possible otherwise to defend society. Today however, as a result of steady improvements in the organization of the penal system, such cases are very rare, if not practically non-existent.

    In any event, the principle set forth in the new Catechism of the Catholic Church remains valid: ‘If bloodless means are sufficient to defend human lives against an aggressor and to protect public order and the safety of persons, public authority must limit itself to such means, because they better correspond to the concrete conditions of the common good and are more in conformity to the dignity of the human person.’

    Scalia is a Cafeteria Catholic, following Church doctrine when it suits him and ignoring it when his opinions and prejudices don’t agree with it.

  • Phillip IV

    I won’t disagree that that analysis is disturbing, I just think that Scalia is actually making a point here that isn’t directly related to his own opinion on the death penalty.

    He does support it, but that’s actually irrelevant in the context of his tenure on the Supreme Court – in the context of the Court, the relevant question is not whether he supports the death penalty, but only whether he thinks it’s constitutional. That question, in turn, centers on the question of whether the death penalty constitutes “cruel and unusual” punishment or not. One argument opponents of the death penalty make for considering the death penalty “cruel and unusual” is that all other Western nations have already abolished it, and this is the argument Scalia is trying to counter here – by arguing that due to the US being much more religious, the average American has a fundamentally different view of the death penalty than the average European, and that that makes the view of the other Western nations irrelevant to the question (in the context of the US constitution). For this aspect, it is also irrelevant whether the religious beliefs concerned are true or even have any basis in truth – as long as they are held by a majority of the population, they affect the perception of “cruelty and unusuality” and thus the constitutionality of the death penalty.

    Naturally, the last paragraph of your post still applies in full.

    • Camels With Hammers

      That’s all true, but I don’t see how it is incompatible with it being his own view of his religion. If he thought this was a preposterous or pernicious or even merely implausible way to understand the implications of his faith, I would think he would not go and characterize it as having this psychology. This is especially true since he is making a caricature of the other side whereby they are totally blase about wrongdoing since they think it’s no one’s fault. He’s characterizing like a partisan to me, saying since Christians get that there’s more than this life and believe in true free will, they believe in the fairness of punishment in general and the permissibility of capital punishment in specific. I don’t see any hints that he sees himself not thinking like other Christians.

    • Phillip IV

      Oh, I wasn’t trying to dispute that he also holds those beliefs personally, I’m quite sure he does. There’s also no shortage of cases where his legal opinions are more than obviously colored or distorted by his beliefs – but in this specific case, the issue Scalia has to decide on (whenever a relevant appeal reaches the Court) is the constitutionality of the death penalty, not the death penalty itself. While in practical terms his faith-based support of the death penalty is highly likely to figure into such a decision, strictly speaking it’s a completely separate issue, and one for which his faith should theoretically have no direct relevancy.

  • martalayton

    I would find this scary, too – if I was convinced that Justice Scalia actually held such a belief or would let it weigh in on his legal decisions. Dan, is this an excerpt of a larger statement? Based just on what you quoted here, I don’t see Scalia saying he actually believes the death penalty might be no big deal to someone who believed in immortality. Rather, he seems to be offering a sociological explanation of how other people who believe in some kind of afterlife might explain why America is less pro-capital punishment than the allegedly secular western Europe.

    Personally, I think this proves we need more theology, not less, within the religious community. Because this view is such an astoundingly bad interpretation of immortality and its relationship to ethics, it just begs to be refuted – not just by those people who deny immortality but also by those who believe in it and don’t think this means that we should all be suicidal. If I was talking to Justice Scalia I would point out that even if there is an afterlife, said afterlife will be infinite in nature – there is no benefit in getting there “sooner,” and quite a lot of loss in someone’s temporal life ending before it should have. For that reason, capital punishment – especially unjust execution – is a major no-no, and saying that the condemned is going to be whisked away to eternal glory (or torture, as the case may be) doesn’t do away with the very real harm you do on this plane of existence…

    • Camels With Hammers

      Based just on what you quoted here, I don’t see Scalia saying he actually believes the death penalty might be no big deal to someone who believed in immortality. Rather, he seems to be offering a sociological explanation of how other people who believe in some kind of afterlife might explain why America is less pro-capital punishment than the allegedly secular western Europe.

      This is the only portion of the piece I have read too so maybe he makes a qualifying remark elsewhere.

      But I would find it odd if describing how he thinks his religion logically and regularly makes people view death and morality would be far off from how it makes him view it, unless he explicitly distanced himself from the viewpoint, which I don’t see him doing. Quite often in describing people of our group’s views we are projecting our own. If he found those ideas abhorrent and the kind you should want to distinguish were not your own, then I imagine it would be a high priority to him to make that distinction. I don’t hear it.

    • Camels With Hammers

      And, Marta, this is the reason we need less theology and more philosophy. Theology invites the dangerous, fantastic beliefs that lead to absurd and dangerous inferences in the first place. The whole problem is using false premises not at all grounded in reality as part of your chain of reasons.

    • martalayton

      Dan, have you ever explained the difference you see between philosophy and theology? I know that on at least one other occasion I have talked about the benefits of theology, and you said what I was really talking about was philosophy, not theology. I ask because I suspect I am more willing than you to put reflective, reason-driven evaluations of religion’s teachings under the umbrella of theology than you are. (I’m not alone; I know that many of the U.K. programs I applied to alongside Fordham had “philosophical theology” tracks within the philosophy faculty, for what Americans would call philosophy of religion.)

      Anyway: the reason I suggested we needed more theology and not less was that I was looking for the path of least resistance to convince people like Scalia that this view is ridiculous. If our sole or main goal is to get Scalia not to take the death penalty so lightly, I’d say it’s easier to use his existing beliefs to reform the bad metaphysics – things he is already committed to, and so is more likely to accept the logical implications of those views rather than convince him of completely new views, then let him integrate those into his thinking enough to accept their implications.

  • Hercules Grytpype-Thynne

    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.

    He doesn’t even understand his own religion. According to Pauline theology, it’s the inability of man to resist temptations to evil that is central to the doctrine of salvation. Otherwise the Mosaic law would have sufficed.

    • Camels With Hammers

      Well, to be fair to him, he’s a Catholic and probably does not have a Calvinist reading of Paul. Reading Augustine’s On Free Choice and the Will one would think free will was pretty damn important. (Augustine’s doctrine of original sin and influence on Calvin notwithstanding. As far as I can tell Augustine talks out of both sides of his mouth in pretty strong ways.)

  • jmoor

    I think Scalia, without intending to so so, made a case that non-believers actually value human life more than believers or God.

    Additionally, I really become confused on why someone on the supreme court would use Christianity to argue any point on any issue.

    While it may be true that our founding fathers were Christians and deists for the most part, they certainly didn’t see a need for Christianity to play a part of our government. The fact that they protected the practice of religion (and not just Christianity)in the private lives of Americans, but specifically excluded with its relationship to government shows they had no intention for future leaders to even bring religion up when governing.

    Lastly, Scalia either ignores or is ignorant of the basis of the Christian faith. If he wants to argue that we should appeal to Christianity when arguing issues of morality and law simply because 80% of the country call themselves Christians, then why not include Sumerian or Egyptian texts, or other writings of morality that Predates Christianity? The Book of Proverbs was greatly influenced by the Egyptian writings on behaviors (Instructions of Amenemobe as an example).

    It bothers me that the Christians hijack argument on morality as if they are the only ones that should and can speak on the subject.

  • Pierce R. Butler

    Hey Tony – pls apply above logic to abortion issues.