The Death Penalty, Scalia, and the Holy Father

A reader asks:

A quick question for you…well, I hope it’s quick. I’m sure by now you’ve read Scalia’s article in First Things called “God’s Justice and Ours“. My question, specifically, is on

these sentences:

> It will come as no surprise from what I have said that I do not agree

> with the encyclical Evangelium Vitae and the new Catholic catechism

> (or the very latest version of the new Catholic catechism), according

> to which the death penalty can only be imposed to protect rather than

> avenge, and that since it is (in most modern societies) not necessary

> for the former purpose, it is wrong. [...]

> So I take the encyclical and the latest, hot-off-the-presses version

> of the catechism (a supposed encapsulation of the “deposit” of faith

> and the Church’s teaching regarding a moral order that does not

> change) to mean that retribution is not a valid purpose of capital

> punishment. Unlike such other hard Catholic doctrines as the

> prohibition of birth control and of abortion, this is not a moral

> position that the Church has always-or indeed ever before-maintained. [...]

> I am therefore happy to learn from the canonical experts I have

> consulted that the position set forth in Evangelium Vitae and in the

> latest version of the Catholic catechism does not purport to be

> binding teaching-that is, it need not be accepted by practicing

> Catholics, though they must give it thoughtful and respectful

> consideration. [...]

> So I have given this new position thoughtful and careful

> consideration-and I disagree. That is not to say I favor the death

> penalty (I am judicially and judiciously neutral on that point); it is

> only to say that I do not find the death penalty immoral. I am happy

> to have reached that conclusion, because I like my job, and would

> rather not resign. And I am happy because I do not think it would be a

> good thing if American Catholics running for legislative office had to

> oppose the death penalty (most of them would not be elected

Is it true that Evangelium Vitae does NOT “purport to be binding teaching”? If that’s the case, then does that conflict with

> “It is not to be thought that what is set down in Encyclical

> Letters does not demand assent in itself, because in these the popes

> do not exercise the supreme powers of their magisterium. For these

> matters are taught by the ordinary magisterium, regarding which the

> following is pertinent ‘He who heareth you, heareth me.’; and usually

> what is set forth and inculcated in Encyclical Letters, already

> pertains to Catholic doctrine.” Humani Generis (1950), DZ 2313.

I think it depends on what aspect of the Encyclical we are talking about. The section on the death penalty (full disclosure: I agree completely with the Pope about the death penalty. I think it should only be inflicted as a last resort and that, whenever possible, human life should be preserved) does not appear to me to bind the conscience of the believer. It appears to be a prudential judgment of the Pope’s, not a dogmatic statement. However, at the same time, I categorically reject what I “Mininum Daily Adult Requirement” approaches to the teaching of the Church (“What’s that absolute least I have to believe?”). To think with the Church requires more than this sort of approach. But to think with the Church is, indeed, to think and not merely to look to the teaching office to micromanage every prudential decision. The death penalty is the proper sphere of Caesar (within careful moral limits) and Caesar (in the person of people such as Antonin Scalia) must make a judgment call. This has roots going back to Romans 13. Caesar’s rights here are not absolute. Jesus is Lord. But Caesar’s rights and duties are real nonetheless.

For myself, I think the death penalty utterly unnecessary anywhere in the First world. I favor the death of criminal only when they pose an ongoing menace to the community (and therefore have no problem with wiping out Al-Quaeda or blowing away bin Laden). But beyond that, I think mercy is wisest. I also think that Christians, living in a culture that is rapidly de-Christianizing, are frankly fools for urging an increasingly pagan and anti-Christian state to take up the sword. Caesar will find uses for the sword, and we may not enjoy it as much as we suppose.