People v. State

Thus wrote Scalia in an article titled “God’s Justice and Ours” published in First Things in 2002, which I came across via these two recent posts on Catholic judges at Mirror of Justice. He goes on to explain:

In my
view, the major impetus behind modern aversion to the death penalty is the equation
of private morality with governmental morality. This is a predictable (though
I believe erroneous and regrettable) reaction to modern, democratic self–government.

Few doubted the morality of the death penalty in the age that believed in the
divine right of kings.

. . .

That consensus has been upset, I
think, by the emergence of democracy. It is easy to see the hand of the Almighty
behind rulers whose forebears, in the dim mists of history, were supposedly
anointed by God, or who at least obtained their thrones in awful and unpredictable
battles whose outcome was determined by the Lord of Hosts, that is, the Lord
of Armies. It is much more difficult to see the hand of God—or any higher moral
authority—behind the fools and rogues (as the losers would have it) whom we
ourselves elect to do our own will. How can their power to avenge—to vindicate
the “public order”—be any greater than our own?

Scalia never answers this excellent question in his article, except to baldly assume, based largely on the words of St. Paul in Romans, the “divine authority behind government.” This seems like an awfully peculiar position to take for a self-described textualist who professes fidelity to the original meaning of the U.S. Constitution and who famously insists that neither he nor other judges have any more authority than what the text of the Constitution gives them. Doesn’t that founding document begin “We the People of the United States . . . do ordain and establish this Constitution for the United States of America”? Doesn’t the preceding document, by which the founders dissolved, by “the authority of the good people of these colonies,” all political bonds connecting us to the state of Great Britain (which by Scalia’s logic was and is presumably also divinely-ordained), Declare that governments derive their just powers from the “consent of the governed”?

To recap: Scalia insists, in this article and elsewhere, that his moral and religious views have nothing to do with how he votes as a judge. Yet his view that the government is authorized by God to exact vengeance, for which he cites St. Paul as support, obviously influences how he votes as a judge (or whether he “can or should be a judge at all”), since he also believes that, apart from this supposed divine authority peculiar to governments, individuals (and logically groups of individuals) have no right to exact vengeance. He again cites St. Paul’s words in Romans for this latter belief: “Dearly beloved, avenge not yourselves, but rather give place unto wrath: for it is written, Vengeance is mine; I will repay, saith the Lord.”

In other words, if in fact the government is no more than what the U.S. Constitution and the Declaration of Independence say it is (and how can he as a humble textualist presume otherwise?), Scalia has no business being a cogwheel in such a godless “machinery of death,” and should resign his post. Alternatively, he could take the Constitution at its word and recognize that the government is entirely a man-made affair with no divine sanction whatsoever, in which case he would be morally bound, as a mere man who professes to believe that mere men don’t have the right to exact vengeance, to vote against the death penalty.

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