February 4, 2002

Scalia Calls Death Penalty Constitutional, Not Immoral

Supreme Court Justice Speaks on Religion, Politics and the Death Penalty at Pew Forum Conference

“You want to have a fair death penalty?” U.S. Supreme Court Justice Antonin Scalia asked an audience of nearly 500 academics and others at a January 25 conference on religion and the death penalty. “You kill; you die. That’s fair.”

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Scalia joined former U.S. Senator Paul Simon (D-Ill.) and Beth Wilkinson, lead prosecutor in the trials of Oklahoma City bomber Timothy McVeigh and his co-consipirator Terry Nichols, in the final session of the all-day conference sponsored by the Pew Forum on Religion and Public Life and held at the University of Chicago Divinity School.

Scalia, who insisted he was “judicially and judiciously neutral” toward capital punishment, said that he did not find the death penalty immoral. “I am happy to have reached that conclusion,” he continued, “because I like my job and would rather not resign.”

Earlier Scalia had said, “In my view, the choice for the judge who believes the death penalty to be immoral is resignation rather than simply ignoring duly enacted constitutional laws and sabotaging the death penalty.”

A proponent of the view that the Constitution is “enduring” rather than “living”–that it does not mean what society or the Court thinks it ought to mean, but rather what it meant when it was adopted–Scalia said that, for him, “the constitutionality of the death penalty is not a difficult, soul-wrenching question.”

“The legal issue for me as a judge is whether the death penalty, as it is administered, violates the Eighth Amendment,” he said. “Does it constitute cruel and unusual punishment? The answer is no.”

As a Roman Catholic, Scalia disagrees with the recent teaching of the Catholic catechism and Evangelium Vitae “that the death penalty can only be imposed to protect rather than avenge,” and therefore is almost always wrong.

This view is not a “position that Christianity has always maintained,” Scalia said. “There have been Christian opponents of the death penalty just as there have been Christian pacifists, but neither of those positions has even been predominant in the church.”

The Church’s current position owes more to Napoleon, Hegel and Freud than to St. Thomas and St. Augustine, he said.

“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,” he said. “For the non-believer, on the other hand, to deprive a man of his life is to end his existence–what a horrible act.”

Contrary to Simon’s statment that “a great many people who are innocent have been executed,” Scalia said, “In my 15 years on the bench, I can only think of one case when I thought there was a little doubt as to the substantive guilt.

“The vast majority of issues that are appealed involve foot faults during the course of the prosecution–evidence was admitted that shouldn’t have been admitted and so forth. But the case where there is serious doubt about whether this is really the person that did it is enormously rare.”

In response to a question about how his religious views inform his decisions as a judge, Scalia replied, “I try mightily to prevent my religious views or my political views or my philosophical views from affecting my interpretation of the laws, which is what my job is about.

“…The only one of my religious views that has anything to do with my job as a judge is the seventh commandment–thou shalt not lie. I try to observe that faithfully.”

In his introductory remarks, moderator E.J. Dionne Jr., Washington Post columnist, Senior Fellow at the Brookings Institution, and co-chair of the Pew Forum, praised Scalia’s competence while acknowledging their philosophical differences.

“As somebody who has disagreed with [Scalia], I have to say that its is a shame that he is very intelligent, it’s a shame that he writes so well, it’s a shame that he is warm and charming.”

The conference was moderated by Dionne and Jean Bethke Elshtain, Laura Spelman Rockefeller Professor of Social and Political Ethics in the University of Chicago Divinity School and the Department of Political Science, and co-chair of the Pew Forum.

Other conference speakers included Khaled Abou El Fadl, a scholar of Islamic law at the UCLA School of Law; Victor Anderson, Associate Professor of Christian Ethics at Vanderbilt Divinity School; J. Budziszewski, political philosopher at the University of Texas at Austin; Avery Cardinal Dulles, S.J., the Laurence J. McGinley Professor of Religion and Society at Fordham University; Richard Garnett, Assistant Professor of Law at the University of Notre Dame Law School; Gilbert Meilaender, Professor of Christian Ethics at Valparaiso University; and David Novak, J. Richard and Dorothy Shiff Professor of Jewish Studies at the University of Toronto.

Read a complete transcript of this session