Much has been said recently regarding Supreme Court Justice Scalia’s claim that Catholic Judges must not pay attention to the declarations of Pope John Paul II on the use of the death penalty, and, always happy to give governments an opportunity to kill people, many conservatives flocked to Scalia’s defense after the judge received some flack for his allegedly irreverent remarks.
Dahlia Lithwick at Slate has already written an interesting piece discussing Scalia’s bizarre attempt to apply the "framers’ intent" argument to the Catholic Church, and it should certainly be no surprise to us that Scalia, who generally supports state power to stop and search people anytime, anywhere, and for whatever reason the cops might fabricate, would come down on the side of encouraging judges to back up the state’s exercising its power to execute people.
What has been most vexing, however, is that Scalia’s supporters have used the controversy to forward the idea that state power trumps the counsel of the Church. In other words, they believe that the church should take orders from kings, and not the other way around. This is an ancient controversy, although it seems novel that conservative Catholics themselves should now be the ones coming down on the side of the kings. What should also be pointed out, of course, is that this idea is not "conservative" at all. The proponents of state power over church power have always been ambitious and reforming power grabbers like Henry II, Henry VIII, and the Lutheran princes of Germany. And let’s not forget that Machiavelli caterwauled on and on about the Church for not allowing the formation of a despotic and militaristic state in northern Italy. For men like these, the orders have always been, "damn your conscience, full speed ahead."
The most prominent conservative to take issue with the Pope’s proclamation and to defend Scalia has been Patrick Buchanan. While I have no doubt that Mr Buchanan has no desire to destroy the authority of the Church of which both he and I are members, his recent remarks on the death penalty and the role of state authority within Church doctrine have been inaccurate. Mr. Buchanan defends Justice Scalia’s arguments by attempting to prove two points. First, that the Church has been an avid proponent of the death penalty in the past, and thus must be one today, and second, that the Church wholeheartedly affirms the right of secular governments to use the death penalty in a variety of cases. While historically, both of these assertions have been true at times in the past, they are in no way universal tenets of Church doctrine and are highly dependant upon whether a particular secular government is in line with Christian morality, and whether or not the death penalty is the only option available within a given situation.
The most common technique in defending the death penalty (and heavy-handedness in general) employed by modern Christians is to quote the books of Moses (Torah) in the Old Testament and to illustrate the justness of the death penalty by listing the numerous offenses contained therein which call for the penalty of death. Such a technique, however, (to use a phrase of Thomas Aquinas) is "not in accordance with Apostolic tradition". This is so for a variety of reasons. First, it should be immediately obvious to anyone familiar the Old Testament that according to tradition, ancient Israel, until it became a kingdom, was a theocracy directly ruled by God, and the laws of Moses were to be applied by judges acting directly under God’s guidance. By the time of Jesus, however, it is clear that this favored position no longer exists among the Jewish hierarchy. Jesus remarks that the old law was fashioned to accommodate the Israelites because of the "hardness of their hearts" and makes light of Jewish dietary regulations by declaring that a man can only be made unclean from within. Indeed the life of Jesus began and ended in defiance of the law, and after Jesus’ death, Peter and the Apostles, when condemned as lawbreakers declared "We must obey God rather than men." (Acts 5,29) The Pharisees wished to put the Apostles to death in accordance with the law but were persuaded by one among them to let the Apostles go free lest they find themselves "fighting against God" by hastening to execute them.
We find in the above example that the hotheads of the Sanhedrin, eager to impose death, were persuaded by a more temperate mind, and indeed, this is all the Catholic church seeks in its teachings on the death penalty. The Catholic catechism states:
Assuming that the guilty party’s identity and responsibility have been fully determined, the traditional teaching of the Church does not exclude recourse to the death penalty, if this is the only possible way of effectively defending human lives against the unjust aggressor…If however, non-lethal means are sufficient and defend and protect people’s safety from the aggressor, authority will limit itself to such means, as these are more in keeping with the concrete conditions of the common good and more in conformity with the dignity of the human person. …As a consequence of the possibilities which the state has for effectively preventing crime, by rendering one who has committed an offense incapable of doing harmu2014without definitively taking away from him the possibility of redeeming himselfu2014the cases in which the execution of the offender is an absolute necessity u2018are very rare if not practically nonexistent.’
For the Church, protecting life and human dignity has always been a legitimate function of legal authority, yet the Church is saying here that in places like the Western world where prison facilities are readily available, it is not the place of the state to make judgments on human beings and to artificially cut short a person’s time to redeem himself. For the Catholic, claiming that "God hates murderers" is every bit as ludicrous as claiming that "God hates fags" since the Church has always taught that only certain kinds of behavior are hated by God while human beings themselves are never to be despised.
It has often been asserted by conservatives that the Church does not challenge the state’s prerogative to maintain "law and order" and that the role of the Christian is not to question or defy the authority of the state. In recent weeks, we have been subjected to a number of commentaries by conservatives purporting to prove that the power of the state not only to kill people, but that the power itself is endorsed by God. In Mr Buchanan’s piece, this is supposed to be illustrated by Jesus’ comment to Pilate that Pilate’s power comes from God. But, the fact that God allows various kinds of regimes to exist hardly leads us to the conclusion that God therefore endorses all of them. In Chinese tradition, there is the concept of the "mandate of heaven" in which it is assumed that a sitting regime must have the power of the divine behind it until it is allowed to fall, thus proving that the mandate of heaven has passed to some other regime. Christian tradition, however, accepts no such supposition, and readily admits that many powerful regimes have prospered while pursuing ends contrary to Christian virtue. This is the central theme of Saint Augustine’s City of God, and Augustine, far from being reverent of the institutions of secular government, treats them as something to be barely tolerated and asks "does it really matter to a man… what government he must obey so long as he is not compelled to act against God or his conscience?" Of course, this statement implies that when a man is compelled to act against God or his conscience, the kind of government he must obey does matter, and this problem was played out through the centuries of Church history. The blood of the martyrs, honored by the Church from Saint Peter to Saint Thomas Becket to Saint Thomas More have all clearly illustrated for us the virtue of defying one’s king.
The catechism of the Church is explicit on this point. It states that all just authority must be based on natural law and that authority may only act for the common good as a moral force based on freedom and a sense of responsibility:
Authority is exercised legitimately only when it seeks the common good of the group concerned and if it employs morally licit means to attain it. If rulers were to enact unjust laws or take measures contrary to the moral order, such arrangements would not be binding in conscience. [Italics mine.]
As has been examined in great detail by James Redford, the claim that it is a Christian virtue to blindly support governmental authority and the status quo is a lie foisted upon the faithful by those who hold positions of authority. Not only is it permissible for Catholics and their fellow Christians to question and at times defy the secular law, it is absolutely required.
