Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Thursday, August 20, 2009

Dershowitz's disingenuity

It is strange to hear Prof. Dershowitz scolding Justice Scalia for not being more aggressive about incorporating the moral teachings of the Roman Catholic Church into the constitutional doctrines of the United States Supreme Court.  Weren't we supposed to be afraid of Catholic justices precisely because of their supposed irresistible tendency to engage in such incorporation? 

Putting aside this transparent double-standarding, I am almost surprised that Prof. Dershowitz allowed his name to be attached in print to this:

[W]hatever the view of the church is on executing the guilty, surely it is among the worst sins, under Catholic teaching, to kill an innocent human being intentionally. Yet that is precisely what Scalia would authorize under his skewed view of the United States Constitution. How could he possibly consider that not immoral under Catholic teachings? If it is immoral to kill an innocent fetus, how could it not be immoral to execute an innocent person?

Yawn.  Of course, Prof. Dershowitz, it is an immoral exercise of public authority to "kill an innocent human being intentionally."  And, of course, Justice Scalia would consider such a killing immoral.  (He might ask you, though, why you think it's fine to kill an "innocent fetus.")  But (see Ed Whelen's response):  "[T]here is nothing in Scalia‚Äôs position as to what the Constitution permits on this issue that speaks to what he regards as moral or immoral."

To be clear:  to cringe at Prof. Dershowitz's silly piece is not to endorse the view that Justice Scalia expressed in Herrera about the power of a federal court to enjoin a state's execution.  But, it seems to me that even we Catholics who oppose capital punishment should object to such an opportunistic and simplistic deployment of the "Catholic morality" card.


Garnett, Rick | Permalink

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