There are times when I read things on NRO that cause me to think that maybe I’m just not smart enough to get the author’s point. And perhaps Conrad Black’s stream of consciousness today should be viewed more like the final chapter of Joyce’s Ulysses (which I still don’t get — and I don’t wish to open up another discussion on post-modernism, so let’s just leave it at that) than a coherent analysis of Justice Scalia’s jurisprudence. But Mr. Black seems to be upset that Justice Scalia has time to comment on a silly lawsuit involving Catholic University’s single-sex dormitories, while at the same time not doing anything about abortion but violating Catholic doctrine on the death penalty. Did I get that right?
Black accuses Scalia of holding his views on the legality of abortion “in pectore.” (I looked it up, and it apparently means that he hasn’t publicly revealed them.) Say what? In the Court’s most recent foray into abortion “jurisprudence,” Justice Scalia, to no one’s surprise, voted with the majority in Carhart v. Gonzales, which upheld the federal ban on partial-birth abortion. Scalia joined in Justice Thomas’s separate concurrence, which stated bluntly that “the Court’s abortion jurisprudence, including Casey and Roe v. Wade . . . has no basis in the Constitution.” So Scalia can hardly be faulted for taking his eye off of the ball or remaining silent in Carhart or any number of other opinions (like Casey) where he has laughed at the notion that the constitution protects the right of a person to abort an unborn child. That the Court hasn’t taken any more cases since Carhart simply speaks to the unchanging vote calculus at the Court, where Anthony M. Kennedy remains a Roe defender and deprives Scalia of a majority on the core question of the “fundamental right” to an abortion. If Black had a different point in castigating Scalia on abortion, I am simply not up on my Latin phrases enough to understand it.
Black, citing the stalwart Catholic theologian Maureen Dowd, then turns to the death penalty, and like Ms. Dowd and similar mainstream arbiters of Catholic doctrine, gets more caught up in the unofficial normative policy statements of bishops, Vatican press secretaries, and even popes than on the official teaching of the Church. To be clear, that teaching is that the death penalty is not inherently evil, like abortion. You simply cannot equate the two, as Black seeks to do here. (I’m aware that Black may be sensitive to penological issues from his current perch, so will cut him some slack.)
We’ve been down this road a number of times before, but John Paul II’s encyclical Evangelium Vitae clearly contemplates the death penalty as a legitimate state response to “redress the disorder caused by” a violent offense. It may not be the preferred one in most circumstances, but it is legitimate. “Public authority must redress the violation of personal and social rights by imposing on the offender an adequate punishment for the crime, as a condition for the offender to regain the exercise of his or her freedom. In this way authority also fulfills the purpose of defending public order and ensuring people’s safety, while at the same time offering the offender an incentive and help to change his or her behaviour and be rehabilitated.”
Should the death penalty be the first avenue for the redress of violent crime? Absolutely not, and Catholics (others as well — I’m just focusing on Catholic teaching, per Mr. Black) of good faith can certainly disagree on its applicability in any circumstances. The state “ought not go to the extreme of executing the offender except in cases of absolute necessity: in other words, when it would not be possible otherwise to defend society.” Those cases “are very rare, if not practically non-existent.” John Paul returns to the Catechism: “If bloodless means are sufficient to defend human lives against an aggressor and to protect public order and the safety of persons, public authority must limit itself to such means, because they better correspond to the concrete conditions of the common good and are more in conformity to the dignity of the human person.”
Now, my dear friend Kathryn Jean Lopez reads that and comes to the conclusion that the death penalty makes her darned uncomfortable, and she might even be wholly opposed to it. I see the legitimacy in that viewpoint, from a Catholic perspective. But to suggest, as Black seems to, that Scalia is somehow inconsistent in his jurisprudence, or even his theology as an individual Catholic, is a woefully uninformed view, not surprising of Maureen Dowd. But I expect something much better of the writers to be found here.
Everyone knows that Molly Bloom's final chapter stream of consciousness was Joyce's parallel to the little gospel at the end of the Tridentine Mass.
Reply to this commentLinkReport AbuseMr. Coffin you're a credit to this website. There's plenty of congratulating each other around here and not near enough argument.
Reply to this commentLinkReport AbuseGood point. Very well put, too.
Reply to this commentLinkReport AbuseOh, snap!
Reply to this commentLinkReport AbuseI wish to expound on Conrad Black and his efforts on NRO, which I deem wholly inadequate to NRO's (and NRODT's) mission.
Reply to this commentLinkReport AbuseTo wit, I think that Mr. Black is a conspiratorial crank.
For instance, he claims - without justification - that the U.S. Labor Department is deliberately underestimating inflation, following in the footsteps of the survivalist "kookdom" and hacks like John Williams and the totally discredited ShadowStats Web site.
Mr. Black has joined the fringe gold-bug crowd, which is lamentable. Does he really think that a return to the gold standard and the dissolution of the Federal Reserve would lead to happiness, peace and prosperity? Does he not know that these positions are part of the political platform of the John Birch Society? Does he not know that William Buckley officially distanced himself - and National Review - from the Birchers way back in 1965? Does Mr. Black not know that NRO and NRODT has steadfastly stood by Mr. Buckley's courageous moral stance since then?
Mr. Black's rather goofy ideological puffball against Justice Scalia is, regrettably, part and parcel of Mr. Black's intellectual decay since, I presume, the controversial charges that relegated Mr. Black to his current sorry situation.
I feel sorry for Mr. Black, in a way. At the same time, I feel he should stop penning nonsense and start advocating for real legal and political reform.
It's my recollection that the Ohn Birch Society was behind, or supported, nation-wide billboards urging the impeachment of Earl Warren. It seemed reasonable then, and today opposition looks downright demented. I don't recall the Birchers getting any kookier as the 60s went on, but if you have access to old NR editions, you'll see a slow drift from Rightism, to Conservatism, to Libertarianism. As a NE 'elite' Buckley's transition is as predictable as the sunrise in the esat. Can't ever trust anyone from the NE. The land of the Puritans and Transcendentalists remains apart from America, and reality.
Reply to this commentLinkReport AbuseYou expect something better of the writers here? Surely you must not read the writers here very often!
RC
Reply to this commentLinkReport AbuseKeep Trying. You are halfway to Witty.
Reply to this commentLinkReport AbuseI didn't read Mr. Black's critique, so I won't comment on it.
I will say that anyone who would accuse him of either not publicly expressing his views on abortion jurisprudence, or "not doing anything" on abortion, fails to comprehend two things (and again, this is not in direct response to Mr. Black):
1) Justice Scalia has made it plain for anyone who has read his opinions on the subject what he thinks of a "right to abort" within the U.S. Constitution. One would have to not read his opinions to think otherwise.
2) Article III of US COnstitution requires that the Court hear "cases and controversies". The US Supreme Court does not issue opinions on issues outside the context of court litigation. So, unless an ACTUAL case comes before the Court from a lower one, there is nothing the Supreme Court can legally do. And any case that does involve a writ of certiorari for the Supreme Court to hear it needs four votes from the Court's members for the writ to issue and the Court to hear the case.
I'll read Mr. Black's comments in due course. The above pertains to anyone who would attack him for staying silent or straying past the parameters of Article III. We'll see if Mr. Black falls into either category.
Reply to this commentLinkReport AbuseI will never understood why anyone would think it reasonable to compare the killing of an innocent, unborn child for the sake of the mother's convenience to the execution of a child molester and murderer as punishment for his crime. If one wants to oppose the death penalty on moral grounds, do that, but don't do that by claiming there is a conflict between pro-life advocates who oppose abortion and pro-life advocates who oppose the death penalty. The innocent victims of crimes that damage the body, the mind and the soul can attest to the fact that there are things worse than death.
Reply to this commentLinkReport AbuseAgreed.
The murder of the innocent unborn and the execution of those who have vilely violated others' humanity cannot be compared in any legitimate fashion.
Reply to this commentLinkReport AbuseI also find it peculiar that Black appears to assume that Scalia's first responsibility as a Justice is to the Catechism of the Catholic Church, rather than the US Constitution. The Constitution says nothing about abortion, which has always been Scalia's position as a Justice--he does NOT say that the Constitution requires the government to ban abortion, even though that may be what Catholic doctrine says. He also DOES say that the US Constitution permits the death penalty in a very broad way that leaves much discretion in the hands of the state, even though Catholic theologians have often taken a more narrow and carefully specified view of what the moral law allows.
In short, Scalia believes what he says when he claims that his charge is to decide cases based on American law. Black suggests that his position on abortion is merely driven by his reading Catholic doctrine into the Constitution, but that's not what he's doing, and his death penalty stance PROVES that.
Reply to this commentLinkReport AbuseI really have nothing more to add to this post other than, "Ditto."
Reply to this commentLinkReport AbuseI've now read Black's comments. They're incoherent. I'm being generous.
He should re-read the US Constitution, which generously presupposes he's done so already, and he should more carefully follow Scalia's jurisprudence, which is about as straight, logically, as linear thinking can get.
And I'd like to wholeheartedly endorse Jenna's comment, as a pro-life individual who opposes both abortion and the death penalty. How anyone can prioritize convicted butchers of life over and above the innocent unborn is more upside-down than I would've thought the human brain capable of scrambling.
And as I've stated before, there is a strong pro-life argument in favor of the death penalty, as in some respect it upholds the sanctity of innocent life. I dissent on other grounds.
Black has some homework to do, and generous time allotment for its completion. I wish him good reading.
Reply to this commentLinkReport AbuseA reader has called me to task for this parenthical: "I’m aware that Black may be sensitive to penological issues from his current perch, so will cut him some slack." The reader is correct, and I was uncharitable in raising the subject. In truth, I found the prosecution of Mr. Black horrific, and without following all the details, likely a great miscarriage of justice. If Mr. Black were unduly sensitive to abuses in the justice system, it would indeed be understandable. So I regret the comment, which I found mildly clever at the time, and apologize to Mr. Black for the jab. My commentary on his column stands on its own without the snide remark.
Reply to this commentLinkReport AbuseAnyone who considers Maureen Dowd to be a credible source for explaining Catholic social justice teaching has absolutely no business discussing Catholic teaching. Ms. Dowd and her kind are partly responsible for the continued slaughter of the unborn in America.
As for the U.S. Constitution and abortion, it is very true that nowhere in the constitution is the word abortion mentioned. however there are two amendments that directly deal with the requirement that prior to a life being taken, there is this little matter of "due process." Both the 5th and 14th amendments provide ample protection for unborn children if anyone had the common sense to read the amendments for what they intended - the protection of innocent life from those who would harm such life, be it the federal government, the state or the private person.
If the subject is ever re-considered by the Supreme Court, Scalia and his fellow justices will have the opportunity to decide if all life is protected by law or if everything we believe is just a sham.
Reply to this commentLinkReport AbuseScalia and the Roman Church are sorely mistaken. The death penalty is deliciously biblical--see Genesis and Leviticus. Indeed, the Lord wants us to execute many more people--not less. It's sick and scary how PC criminal coddlers have infiltrated so many American pulpits...
Reply to this commentLinkReport AbuseO.K., so Coffin quotes "Public authority must redress the violation of personal and social rights by imposing on the offender an adequate punishment for the crime, as a condition for the offender to regain the exercise of his or her freedom. In this way authority also fulfills the purpose of defending public order and ensuring people’s safety, while at the same time offering the offender an incentive and help to change his or her behaviour and be rehabilitated.” as evidence that the Catholic church contemplated the legitimacy of the death penalty? How can the "offender regain the exercise of his or her freedom" after the death penalty. No Pope, no Cardinal, no Bishop has ever advocated for the death penalty. Full stop.
Reply to this commentLinkReport AbuseAgreed on the disconnect between the death penalty applied to a murderer and the taking of innocent life, allowed under California law at least on no more than the simple ground that mother wanted to do it. I still wait for someone to tell me any other situation in which the law condones the murder of a human on grounds of preference.
As to Scalia, Thomas et al., the Supreme Court really has to reverse Griswold v Connecticut, the case that declares a Constitutional right to privacy. Once that case is disposed of, the weight behind Roe and others is done away with. The day is coming.
Reply to this commentLinkReport AbuseIndeed, Black's article seemed absent any central theme. Was it anti-Catholic? Was it anti-SCOTUS? Was it simply a vehicle to selectively thrash Scalia? Hard to discern from that mash of incoherent erudition. Regardless, Black seems to be equally ignorant of both the procedural realities of the SCOTUS and Catholic dogma/doctrine. His claim that there have been five "recent" Papal dissents regarding the morality of a properly applied death penalty, would qualify as "ignorantia invincibilis", which means I guess we should grant him either forgiveness...or at least ignore him. Needless to say, CCC 2267 states quite clearly the right of the state to impose the death penalty, and despite John Paul II's addition of a somewhat confusing (to some) qualification, the teaching tradition (dogma) of the Church remains unchanged on the central point, as it must. Cafeteria Catholics & Christians will always choose to reinterpret scripture & tradition to suit their own purposes and ego. Not sure where Mr. Black falls on this theological spectrum, and do not have the interest to find out, but I will with little risk assume that since he cites the highly regarded Catholic theologian Maureen Dowd, that he is another catholic lead astray by the VII zeitgeist. The death penalty is about as rare and difficult to impose as it possibly can be, and meets the criteria of the Catholic Church, the Constitution and common sense. To bad that abortion is not equally rare and difficult.
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