One Catholic voice on death penalty takes on another (Prejean vs. Scalia)

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KBarn:
Philip,

Let me begin by saying that I like you. You are a very thoughtful person, and honest on top of it all.

I agree that we as Catholics should pursue a consistent life ethic. But I think that means knowing when to use capital punishment in a way that is consistent, not on abolishing it all together. Now, probably in 99% of the cases in which it is used in the United States, it should not be used. I think that the use of capital punishment should be practically non-existent. But I think the option should be on the table should it become a necessity. I will illustrate with a hypothetical.

That is my position. You will probably find that it is not all that different from yours. I am certain that my position squares with Catholic doctrine and tradition. Yours does as well. That is not the issue.

I am not asking you to defend your position because I agree that it is legitimate. All I am asking is that you agree that mine (and similar positions) are also legitimate. There is a wide variety of legitimate positions on the subject that are supported by Catholic doctrine.
KBarn,

Thanks for the compliment and the tone. Likewise. 🙂

I do think, though, that abolition makes the most sense in our nation and time. Yes, you can always find an exception, but you shouldn’t make laws based on exceptions. It’s a bit reminiscient of discussions about torture. You can come up with a hypothetical scenario - what if there’s a ticking bomb and toture might reveal info on how to defuse it - but ultimately such scenarios are very unlikely, and building an entire policy around possible exceptions seems distinctly flawed.

I’d like to write more, but I’m a bit pressed for time just now (and incidentally will probably not have time to visit the forums for several days - going home for memorial day holiday). Until then…
 
(Earlier in this thread)

"for the record, I voted for Kerry." - Philip P

For the record, if you vote pro-abortion you are pro-abortion.
 
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Richardols:
I believe that anyone who actually supports capital punishment is as much a part of the Culture of Death as any New York City abortionist.
You have a grave misunderstanding of Church teaching. You label as sinful that which is not, and you repress the horror of abortion - a systimatic procedure you may or may not recall which involves the tearing of limbs from perfectly innocent babies.

On average one criminal per week is put to death in this country. In the same amount of time 24,500 babies’ lives are snuffed out by abortionists. How dare you equate the two.
 
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Richardols:
No, those conservative slave masters had no problem with the death penalty. However, in an evolving society, the question of “cruel and unusual punishment” might be a constitutional question.

The Constitution is a subjective document. It’s been amended often enough to keep up with the times.
 
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tuopaolo:
By saying that there is a legitimate diversity of opinion he already does not act in unison with what John Paul did before him since John Paul didn’t say the same thing and certainly did not stress it the way Cardinal Ratzinger did.
Admittedly, the stress was not the same. However, neither was the question to which Cardinal Ratzinger was responding. I don’t know that we could say John Paul II would not have responded similarly to a similar question. Indeed, it is quite possible that Ratzinger’s reply was first run by (and possibly even partially written by) the past pope. Certainly, the catechism approved and published under John Paul was in no way in disunion with Ratzinger’s statement. I, therefore, do not believe that we can conclude that the man who is now pope was not acting in unison with what John Paul proferred.
I don’t know if it’s “most” but I agree that some will suggest refraining from its use and that their number will be more than those who suggest not refraining (this doesn’t mean that it is most because there will be some who just remain silent)
It would seem that the longstanding consensus of the USCCB is in opposition. If it were not so, we’d hear more about it.
Cardinal Dulles described it as a “prudential judgement” in his little piece in the National Catholic Register (which I’ll quote below)
I seem to recall Cardinal Ratzinger making a statement as to whether it was doctrinal development or not, but unfortunately I don’t remember with clarity which way he opined. In any case a number of people said it was not and that doctrinal development cannot happen overnight, etc.
Thank you for your citation. I have previously read (numerous times) Cardinal Dulles’s arguement. It is one position which is commonly taken up by death penalty proponents (admittedly Dulles is not one of them) to argue that they have legitimate standing in holding to their position. However, the argument that the pope’s position was merely debateable “prudential judgement” and not a genuine theological development or pastoral exhortation about Christian living is but one perspective and certainly not an infallible interpretation of the late pope’s argument.

I would not that I have not necessarily suggested (nor do I know of anyone who does) that John Paul’s articulation is (or necessarily ever will be) what might come to eventually be considered a “doctrinal development”. I argue, rather, that it is potentially a theological and philosophical development as well as an insightful exhortation to more serious Christian living. My only suggestion is that it ought to be examined from that perspective, in addition to the “prudential judgement” route that many choose to end the discussion upon. For from this angle, it may shed important new light and concern that is otherwise being ignored. In failing to recognize and take seriously this position, then, we may be missing out upon the greater call of John Paul.
“It is with great reluctance that I take issue with Justice Scalia, who is rightly regarded as one of the outstanding legal experts of the nation and an exemplary Catholic. I agree with what he says about the constant Catholic tradition in favor of the death penalty and the harmony of that tradition with the system of criminal justice that undergirds the United States Constitution and the Bill of Rights. But I differ with Justice Scalia in his interpretation of Pope John Paul II in Evangelium Vitae.”
Just as a note of clarification, I believe that you ought to remark as to whose emphasis this is, Cardinal Dulles or yours.
And apparently Cardinal Dulles not only disagrees with Scalia but also with you as regards interpreting what John Paul II said in EV. Dulles continues:
I’m fortunate to be included included in acknowledgement during this signifigant debate with such great company as these two men. Thank you!

Cardinal Dulles’ point is made even more explicit as he continues:
So in Cardinal Dulles’ view John Paul did not deny that the death penalty could be rightly exercised as a matter of “retributive justice.”
Neither do I argue such. The good Jesuit theologian and I are in agreement on this point.

Rather, my argument is that the pope is merely deepending our reflection on the matter in the light of a more phenomenological/personalistic view which is unique.
 
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Richardols:
I thought we were discussing the death penalty on this thread. So, at this moment, Justice Kennedy is my favorite.
Can I toss in my thumbs up for Thomas, here. Frankly, I don’t much care for Scalia. Not because of any technical positions he takes, but because his underlying judicial philosophy, in strict constructionalism, essentially amounts to a form of legal positivism which I find to be ultimately destructive. I’m much more of a natural law person. I probably would have liked Bork on the Court for that reason.
 
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chicago:
Can I toss in my thumbs up for Thomas, here. Frankly, I don’t much care for Scalia. Not because of any technical positions he takes, but because his underlying judicial philosophy, in strict constructionalism, essentially amounts to a form of legal positivism which I find to be ultimately destructive. I’m much more of a natural law person. I probably would have liked Bork on the Court for that reason.
So defending the constitution as it is written and applying it as it has been historically intended to be applied how makes him destructive? The Constitution was a natural outflow of Natural Law, how can being a strict constructionist be destructive. Either you are not expounding your point clearly, or I am missing something.
 
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chicago:
Thank you for your citation. I have previously read (numerous times) Cardinal Dulles’s arguement. It is one position which is commonly taken up by death penalty proponents (admittedly Dulles is not one of them) to argue that they have legitimate standing in holding to their position. However, the argument that the pope’s position was merely debateable “prudential judgement” and not a genuine theological development or pastoral exhortation about Christian living is but one perspective and certainly not an infallible interpretation of the late pope’s argument.
One of the reasons Cardinal Dulles doesn’t favor (or at least sees being a factor against) the death penalty at the present time in the US is because of “The failure of modern democratic society to perceive the judgment of the State as embodying a transcendent order of justice.” So presumably if this reason or factor and others were to change in the future, Cardina Dulles would support the death penalty in the US. In my opinion, getting rid of the death penalty would only exacerbate the problem of “the failure of modern democratic society to perceive the judgment of the State as embodying a transcendent order of justice” So what Cardinal Dulles sees as a reason to not favor it or a factor weighing against it, seems to me to be actually be a factor weighing more for it than against it.
Just as a note of clarification, I believe that you ought to remark as to whose emphasis this is, Cardinal Dulles or yours.
Well about 75% of the text (it would have been 90+% but for the last segment) I quoted was marked up with bold, underline, italics, often in combination, so I doubt anyone would have thought that Cardinal Dulles was responsible for all that mess 😉
 
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chicago:
Can I toss in my thumbs up for Thomas, here. Frankly, I don’t much care for Scalia. Not because of any technical positions he takes, but because his underlying judicial philosophy, in strict constructionalism, essentially amounts to a form of legal positivism which I find to be ultimately destructive. I’m much more of a natural law person. I probably would have liked Bork on the Court for that reason.
I don’t think Scalia calls himself a “strict constructionist.” When asked about this, apparently, he said that he neither believes in interpreting the constitution strictly nor in interpreting the constitution loosely; but rather believes in interpreting the constitution reasonably. Perhaps “reasonably” would include a place for natural law. Ideally not only natural law but also positive divine law should inform our society and its laws.
 
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Xavier4Life:
How dare you equate the two.
I believe in a consistent life ethic. I equate taking lives when lives need not be taken, either by an executioner or an abortionist. Both serve the Culture of Death. Both should be eliminated.
 
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Richardols:
I believe in a consistent life ethic. I equate taking lives when lives need not be taken, either by an executioner or an abortionist. Both serve the Culture of Death. Both should be eliminated.
If both served the culture of death, both would be clearly labeled as intrinsic evils in the Catechism. They are not. You are wrong.
 
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Xavier4Life:
If both served the culture of death, both would be clearly labeled as intrinsic evils in the Catechism. They are not. You are wrong.
You have your opinion, fine. I, however, firmly believe that a prison death house is as much a part of the Culture of Death as an abortionist’s office. And that both should be abolished.
 
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Scott_Lafrance:
So defending the constitution as it is written and applying it as it has been historically intended to be applied how makes him destructive? The Constitution was a natural outflow of Natural Law, how can being a strict constructionist be destructive. Either you are not expounding your point clearly, or I am missing something.
  1. I don’t agree that the constitution was necessarily a “natural outflow of Natural Law” in either it’s essence or each of it’s articles or amendments.
  2. Strict contructionalism requires a justice to uphold only legal positivism. If a positivist law is inherantly unjust, he must either uphold the injustice or (as Scalia suggests) resign his position. So, for example, if a state passed a law which required pharmacists to dispense contraceptives (no exceptions), a justice could not find a way to strike that down, it being immoral law, but would be required by his doctrine of strict constructionalism to uphold the law.
Really, I don’t have any problem at all with judges (particularly at the appelate level) interpreting the law and ruling upon it’s broader sense in order to uphold justice, rather than merely applying the dictums of positivism. The key is for them to be interpreting such law rightly in accordance with the dignity of man and true to his nature. When we reduce things to only applying whatever positivisms are decided by the will of the masses, we may be simplictically accepting the selfish desires of the strongest and most powerful, whether these principles are just or not.
 
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tuopaolo:
I don’t think Scalia calls himself a “strict constructionist.” When asked about this, apparently, he said that he neither believes in interpreting the constitution strictly nor in interpreting the constitution loosely; but rather believes in interpreting the constitution reasonably. Perhaps “reasonably” would include a place for natural law. Ideally not only natural law but also positive divine law should inform our society and its laws.
Scalia’s articulated position, which he struggled with on the death penalty issue, is that a judge must either enforce the law as written or resign (or minimally recuse himself) his position of judgement, if he can not do so in good conscience. But he is not allowed to define in another light which suits his understanding of justice.

I don’t know of any judicial commentator who doesn’t consider Scalia a strict constructionalist. It is how he is commonly defined. In fact, he is typically held up as a model example of such.
 
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tuopaolo:
One of the reasons Cardinal Dulles doesn’t favor (or at least sees being a factor against) the death penalty at the present time in the US is because of “The failure of modern democratic society to perceive the judgment of the State as embodying a transcendent order of justice.” So presumably if this reason or factor and others were to change in the future, Cardina Dulles would support the death penalty in the US. In my opinion, getting rid of the death penalty would only exacerbate the problem of “the failure of modern democratic society to perceive the judgment of the State as embodying a transcendent order of justice” So what Cardinal Dulles sees as a reason to not favor it or a factor weighing against it, seems to me to be actually be a factor weighing more for it than against it.
Interesting. And while I would come down on Dulles’s side here, I don’t know that we could presume (particularly in light of John Paul’s exhortatoins) that the good cardinal would (if the circumstances changed) then necessarily support the penalty; mindful of the fact that justice is always to be served in the order of mercy and, if a greater mercy of sparing life can legitimately prevail while still serving justice (as must be his argument if he speaks to using such restraint even now), then refraining from the application of capital punishment may also be in the best general interests for the public good.
Well about 75% of the text (it would have been 90+% but for the last segment) I quoted was marked up with bold, underline, italics, often in combination, so I doubt anyone would have thought that Cardinal Dulles was responsible for all that mess 😉
Marking up text that extensively is often counterproductive and just tends to make one’s remarks look showy or pompous. I find that it’s most often best to just let the original comments speak for themselves, mindful of the reality that there is no need to come off as preachy by so heartily emphasizing; with the understanding that your interloquetor is sincere and can inteligently read and understand what was written and cited.
 
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chicago:
I don’t know of any judicial commentator who doesn’t consider Scalia a strict constructionalist. It is how he is commonly defined. In fact, he is typically held up as a model example of such.
But what percentage of judicial commentators do you actually know? In any case the most important judicial commentator is Justice Scalia himself since presumably he would know how to define himself better than anyone else is able to define him for him and Justice Scalia emphatically says that he is not a strict constructionist even saying that strict constructionists give him and other originalists a “bad name”:

When the laughter subsided, Scalia made what he clearly felt was an important point. “Never call me a ‘Strict Constructionist,’” he proclaimed, since* “’Strict Constructionists’ give Originalists a bad name.”** In his view “you should not interpret the Constitution strictly, you should interpret the Constitution reasonably.”*

pda-appellateblog.blogspot.com/2003_02_01_pda-appellateblog_archive.html
 
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tuopaolo:
But what percentage of judicial commentators do you actually know?
Personally? That is why I said “know of”. 😉 They aren’t hard to find in the press, TV/Radio, journals.
In any case the most important judicial commentator is Justice Scalia himself since presumably he would know how to define himself better than anyone else is able to define him for him and Justice Scalia emphatically says that he is not a strict constructionist even saying that strict constructionists give him and other originalists a “bad name”:

When the laughter subsided, Scalia made what he clearly felt was an important point. “Never call me a ‘Strict Constructionist,’” he proclaimed, since** “’Strict Constructionists’ give Originalists a bad name.”** In his view “you should not interpret the Constitution strictly, you should interpret the Constitution reasonably.”

pda-appellateblog.blogspot.com/2003_02_01_pda-appellateblog_archive.html
Fair enough. Nonetheless, “originalist” is in some way a form of strict consctructionalism, whether he likes the term or not. It’s an ideology and fundamentalism, of sorts, from which he views things… supposing that he can definitively divine all original intent by his own perspectives and largely in line with a positivist understanding. Which is fair enough. I just don’t agree with it.
 
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chicago:
“originalist” is in some way a form of strict consctructionalism, whether he likes the term or not. It’s an ideology and fundamentalism, of sorts, from which he views things… supposing that he can definitively divine all original intent by his own perspectives . . .
Nice use of loaded language. The consitution is a reflection of the fundemental ideology of the country.

Scalia no more “divines” orginal intent than did Justice Joseph Story (1779-1845) upon whose “Commentaries on the Constitution of the United States” Scalia relies heavily.
 
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David_Paul:
Nice use of loaded language. The consitution is a reflection of the fundemental ideology of the country.

Scalia no more “divines” orginal intent than did Justice Joseph Story (1779-1845) upon whose “Commentaries on the Constitution of the United States” Scalia relies heavily.
Again, fair enough as far as it goes. But Story’s story is, nonetheless, just his own account and perspective, er “commentaries on the constitution”.

And, I’m still perfectly entitled to prefer a different approach. Which is why I wish Bork were on the Court. He would be my man.
 
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chicago:
And, I’m still perfectly entitled to prefer a different approach. Which is why I wish Bork were on the Court. He would be my man.
Ok…got it now (finally). Bork is just fine. Within the bounds. I was getting a hint of Breyer/Ginsberg type thinking. Nothing specific which is why I’ve been reading a while before commenting.

And yes, Story was just one story. Familiar with William Rawle’s 1825 “View of the Constitution?” Agree with his secessionist argument?

(Not sandbagging you here. I don’t know if I am or not. Never explored it–mainly because the issue is settled…well…for most it is)
 
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