Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Sunday, October 2, 2011

Maureen Dowd's Column Today

It's clear enough that Maureen Dowd disagrees with several of Justice Scalia's views: abortion, co-ed college dorms, capital punishment, and attendance of the Justices at the Red Mass are among them (though I don't think that Justice Scalia has expressed any public view on the last of these, though I may be wrong).  It's not exactly clear to me whether she disagrees with Catholics expressing their views as such, or disagrees with the subjects about which they choose to express themselves, or disagrees with the positions that they stake out, or all three. 

Just a quick note on the complex doctrine of cooperation in evil, which I am sure many have discussed here at MOJ over the years, and about which many here will know much more than I.  

When I taught Catholic Social Thought last year (for the first time), we studied together some of Pope John Paul II's encyclicals, including Evangelium Vitae and Veritatis Splendor, and what they had to say about this doctrine.  There are complicated issues of intention, explicit and implicit, lurking here and I distinctly recall discussion of the permissibility of a legislator voting for a law which will continue, but limit, an immoral practice.  Deep waters, and certainly too deep for a blog post.

But it seems to me that Ms. Dowd's column also misses an important feature of Catholic thought.  Not all moral evils stand in the same position.  Some animals are more equal than others.  Otherwise, cooperation in the evil of meaningless, casual, and loveless hook-ups by championing co-educational college dorms, for example, would stand in the same position as cooperating in the evil of abortion by championing harder pro-choice constitutional limitations than presently exist.  And the death penalty, as morally fraught as it assuredly is, does not stand in the same position as abortion.  I am making this claim purely as a descriptive matter, though I am happy to be corrected by those who know more (and I really mean it when I say that that's just about everybody who writes on this page).  Here's a passage from an article by Professors Charles Reid and (our own) Greg Sisk from a few years ago which I have found helpful:

[T]he death penalty upon convicted murderers does not, as yet, fall into the exceptional category of plainly proscribed public-regarding decisions — although Church teaching appears to be gravitating toward such a conclusion. 

Within the last few decades, a growing number of civilized countries have developed refined criminal justice systems, in which incarceration of violent offenders offers secure protection of society from criminal predation. This modern political development has led the Church to reappraise the validity of execution. If lethal measures are no longer necessary for societal protection, then they become difficult or impossible to justify when other available means of punishment are “more in conformity with the dignity of the human person."  This deduction regarding the legitimacy of the death penalty in societies with well-structured penal systems, while appearing to be that of a growing consensus among Catholic prelates and theologians, has not yet solidified into the kind of teaching that can be said to be believed semper et ubique (“always and everywhere”), and thus to be regarded as part of the ordinary Magisterium.  It may well be that Church preaching and teaching on this subject will develop into a categorical directive for modern circumstances, or at least may resolve into an unequivocal condemnation of the frequent and unreflective resort to execution that prevails in certain regions of this country. That day, however, has not yet come.

In contrast with prudential policy judgments, certain forms of societal behavior that implicate public policy are so manifestly and grievously wrong as to be categorically prohibited. As the United States Conference of Catholic Bishops recently confirmed: “It is the teaching of the Catholic Church from the very beginning, founded on her understanding of her Lord’s own witness to the sacredness of human life, that the killing of an unborn child is always intrinsically evil and can never be justified.  In these instances of intrinsic evil—slavery, genocide, racist oppression, and abortion—moral principle and public policy effectively merge, sharply circumscribing prudential judgment. Nor is room left for equivocation, qualification, or compromise of an elemental principle.  (citations to Gaudium et Spes, EV, the Catechism, and several other sources omitted).

Have a look at Ms. Dowd's column which, in my opinion, may mix together a few too many things in its eagerness to criticize Justice Scalia.


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She's blinded by bile; intoxicated by snark.

Posted by: Rick Garnett | Oct 2, 2011 10:25:49 PM

One thing that I'm absolutely certain of is that the best thing one can do with a column by Maureen Dowd is ignore it. I do my best to not even know what she writes on. There's nothing of interest to learn there, and I'm not sure if I've ever met anyone who claimed to enjoy them. Perhaps if people would just ignore them, they might go away.

Posted by: Matt | Oct 2, 2011 10:44:18 PM

I'm not interested in defending Dowd, but I think there is an interesting underlying point here.

Catholicism has a much greater acceptance of appeal-to-authority for moral proofs than most other mainstream intellectual traditions in America, which I think might be part of the reason for disconnect in cases like this. A common form of argument is to demonstrate an inconsistency in someone's beliefs. It's an easier way (at least hypothetically) to get someone to change their mind then to take issue with their core beliefs directly.

Such is the motivation, it seems to me, between the common equation made by liberals between abortion and the death penalty. The arguments against the former, it seems, tend to also act against the latter, so those who oppose abortion should join forces against the death penalty.

One common response, exemplified above, is an appeal to authority: as Sisk and Reid say, abortion is strictly forbidden, but there's room for prudential judgment on the death penalty. That argument misses with liberals because they don't see the included appeal to authority as a legitimate source of morality. Sure, they respond, there's room for prudential judgment on the death penalty in Catholic teaching, but if you accept the values you claim to in opposing abortion, you must also exercise your prudential judgment to oppose abortion.

Perhaps it's an intractable disagreement so long as the two sides look to two different types of ethical argument, but I think it's an interesting thing to note.

Posted by: Andrew MacKie-Mason | Oct 2, 2011 11:45:19 PM

I have never been a fan of Ms. Dowd's work. However, I have to say that I find Justice Scalia's dismissal of the Catholic position on the death penalty to leave out a great deal. Yes, the Cathecism says that there are some instances where the penalty can be used if there is no other way to protect the public. However, we have a penal system that can protect the public here (anyone here of Ted kacynski lately, for example) and there is no way you can read the Cathecism and then justify any exectuion here in the United States. At least I don't see it and Justice Scalia is being willfully blind to this and other statements by the Church on the death penalty.

I will also agree with Ms. Dowd's statement on politicians and the Iraq invasion. That, and Justice Scalia's distortion of the death penalty, shows again how these folks used Catholic teaching when it suits their purposes (Rick Santourm on torture) and then condemn other for going against the Church on their issues.

Posted by: Edward Dougherty | Oct 3, 2011 11:37:36 AM

There's one other quoe from Justice Scalia's speech that I find really interesting (if this is accurate). Here it is:

(Beginning of Quote)What does it mean to be a Catholic law school? There is no such thing as Catholic law. The law is no different for a Catholic than it is for a Jew any more than it is different for a woman or a man or a white man or a black.

Thus it is that I am sometimes embarrassed when sincere opponents of abortion sometimes thank me for championing their cause. ... I do not champion their cause. The Constitution addresses the subject not at all, which means that it is left up to the states. (End of Quote).

If I'm reading this right, Justice Scalia seems to be saying that if Roe V Wade were overturned tomorrow (and I am sure he would vote for that) is he then saying that if abortion restrictions remained loosened in all 50 states that he would be o.k. with that? If so, isn't this going against the exortation from Archbishop Chaput (among others) that we are to live our Catholic faith in the open and that included our public officials?

I mean, here's one of the most prominent Catholic officials in America saying his originalist views allow him to say that abortion on demand is fine so long as the states allow it. Not my problem, he seems to be saying, go talk to the state legislatures. I just find that response to be fascinating but (per my earlier post) I certainly don't expect a challenge from any of the bishops about it.

Posted by: Edward Dougherty | Oct 3, 2011 11:53:47 AM


If Roe v. Wade were overturned and the states has loosened abortion restrictions, what would you have Scalia do in order to live out the Catholic faith? I don't see any violation for a Catholic judge to say "abortion is evil, and laws should be changed to that effect by the legislature. Don't look to me to change the laws, because I can't do so since I don't have the authority."

This is similar to my "A Man For All Seasons" point that I made in the thread about interpreting the Constitution in order to bar capital punishment. For our safety's sake, let's not cut down the way our legal system works. If there is a flawed law that is legally on the books, let's not empower a judge or dictator or anyone else to act outside of his authority in order to invalidate or modify or bar the law. Instead, let's change the law.

Posted by: Thales | Oct 3, 2011 12:42:36 PM

Hi Thales,

Actually, your point is correct that he can't do anything when concerned about state legislature. And I agree with Justice Scalia's viewpoint on this issue. However, if you read some of the bishops on this issue, such as Archbishop Chaput, they believe that Catholics in public life need to be affirming the faith in their offices. In this instance, Justice Scalia admits that he doens't champion the cause of eliminating abortion and that the law isn't "Catholic", as he sees it. Indeed, how is what Justice Scalia is saying here any different from what President Kennedy said in the famous "Houston speech" in 1960?

Posted by: Edward Dougherty | Oct 3, 2011 12:57:18 PM

Thales and Edward, thanks for both of your comments. It might be worthwhile for you guys to take a look at the documents dealing with cooperation in evil. Perhaps you already know them, in which case forgive me, but it seems to me that it might be helpful for your exchange to have an understanding of how the various discussions of 'intention' in some of these documents relate to the institutional role of judges that Thales mentions. Edward is certainly right that the kinds of commitments discussed by Archbishop Chaput are extremely important, but there may be different ways of living them out as layered onto one's institutional civic role. Just a thought. Marc

Posted by: Marc DeGirolami | Oct 3, 2011 1:04:08 PM

"I will also agree with Ms. Dowd's statement on politicians and the Iraq invasion."


As alwasy I am amazed that people forget that second statement by the US Bishop on the IRaq war that was a tad more nuanced as to that issue

Posted by: jh | Oct 3, 2011 1:24:23 PM


One other point about Chaput. he talked about the role of Judges here


Scroll down to the part where the question is asked by WENDY KAMINER, of THE PHOENIX:

Posted by: jh | Oct 3, 2011 1:28:21 PM


Thanks for the interesting comment from Chaput re:judges. That is along the lines I was thinking.

Another thought about living out one's commitments depending on one's institutional civic role: Even setting aside the fact that a judge may think that he is extremely restricted in what he can do in order to further a Christian civil society (because he's only interpreting the law, and not making or changing the law), I could see that a judge might feel quite restricted in how much he can talk about or advocate in favor of a Christian civil society. In other words, I suspect that Scalia not only thinks that he couldn't invalidate an abortion-permissive law based on the Constitution, but that it would be inappropriate for him to publicly argue and advocate for the repeal of an abortion-permissive law. This is so because of the importance of him conveying to the public an appearance of impartiality, in order to avoid being disrepute on the institution of the judiciary and the legal system as a whole.

Now at some point, a judge may be faced with a legal system that is so immoral, that he must speak out against it and/or resign from the bench (e.g., Nazi Germany). I don't have an answer for how to determine when society gets to that point.

Posted by: Thales | Oct 3, 2011 5:24:22 PM

The Constitution does not say anything about abortion because one cannot be destroying the life of an innocent human individual while protecting that same innocent human individual's Right to Life, simultaneously.

Posted by: Nancy D. | Oct 3, 2011 5:36:03 PM

Professor DeGerolami:

Below is an excerpt from Professors Reid and Sisk’s article that you quote in your post and below that, for readers consideration, are excerpts from Justice Scalia’s May 2002 article in First Things which to some extent is a critique of the views expressed by Reid and Sisk, and Scalia’s concurring opinion in Callins v. Collins. (Presumably the First Things article is the article to which Maureen Dowd made a passing reference in her column. It can be found at http://www.firstthings.com/article/2007/01/gods-justice-and-ours-32 ). My brief comment follows.

1. Reid and Sisk:

Within the last few decades, a growing number of civilized countries have developed refined criminal justice systems, in which incarceration of violent offenders offers secure protection of society from criminal predation. This modern political development has led the Church to reappraise the validity of execution. If lethal measures are no longer necessary for societal protection, then they become difficult or impossible to justify when other available means of punishment are “more in conformity with the dignity of the human person." This deduction regarding the legitimacy of the death penalty in societies with well-structured penal systems, while appearing to be that of a growing consensus among Catholic prelates and theologians, has not yet solidified into the kind of teaching that can be said to be believed semper et ubique (“always and everywhere”), and thus to be regarded as part of the ordinary Magisterium.

2. Scalia:

“It will come as no surprise from what I have said that I do not agree with the encyclical Evangelium Vitae and the new Catholic catechism (or the very latest version of the new Catholic catechism), according to which the death penalty can only be imposed to protect rather than avenge, and that since it is (in most modern societies) not necessary for the former purpose, it is wrong. That, by the way, is how I read those documents—and not, as Avery Cardinal Dulles would read them, simply as an affirmation of two millennia of Christian teaching that retribution is a proper purpose (indeed, the principal purpose) of criminal punishment, but merely adding the “prudential judgment” that in modern circumstances condign retribution “rarely if ever” justifies death. (See “Catholicism & Capital Punishment,” FT, April 2001.) I cannot square that interpretation with the following passage from the encyclical:

“It is clear that, for these [permissible purposes of penal justice] to be achieved, the nature and extent of the punishment must be carefully evaluated and decided upon, and 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. Today, however, as a result of steady improvements in the organization of the penal system, such cases are very rare, if not practically nonexistent. (Emphases deleted and added.)

“It is true enough that the paragraph of the encyclical that precedes this passage acknowledges (in accord with traditional Catholic teaching) that “the primary purpose of the punishment which society inflicts is ‘to redress the disorder caused by the offense’” by “imposing on the offender an adequate punishment for the crime.” But it seems to me quite impossible to interpret the later passage’s phrase “when it would not be possible otherwise to defend society” as including “defense” through the redress of disorder achieved by adequate punishment. Not only does the word “defense” not readily lend itself to that strange interpretation, but the immediately following explanation of why, in modern times, “defense” rarely if ever requires capital punishment has no bearing whatever upon the adequacy of retribution. In fact, one might say that it has an inverse bearing.

“How in the world can modernity’s “steady improvements in the organization of the penal system” render the death penalty less condign for a particularly heinous crime? One might think that commitment to a really horrible penal system (Devil’s Island, for example) might be almost as bad as death. But nice clean cells with television sets, exercise rooms, meals designed by nutritionists, and conjugal visits? That would seem to render the death penalty more, rather than less, necessary. So also would the greatly increased capacity for evil—the greatly increased power to produce moral “disorder”—placed in individual hands by modern technology. Could St. Paul or St. Thomas even have envisioned a crime by an individual (as opposed to one by a ruler, such as Herod’s slaughter of the innocents) as enormous as that of Timothy McVeigh or of the men who destroyed three thousand innocents in the World Trade Center? If just retribution is a legitimate purpose (indeed, the principal legitimate purpose) of capital punishment, can one possibly say with a straight face that nowadays death would “rarely if ever” be appropriate?

“So I take the encyclical and the latest, hot–off–the–presses version of the catechism (a supposed encapsulation of the “deposit” of faith and the Church’s teaching regarding a moral order that does not change) to mean that retribution is not a valid purpose of capital punishment. Unlike such other hard Catholic doctrines as the prohibition of birth control and of abortion, this is not a moral position that the Church has always—or indeed ever before—maintained. There have been Christian opponents of the death penalty, just as there have been Christian pacifists, but neither of those positions has ever been that of the Church. The current predominance of opposition to the death penalty is the legacy of Napoleon, Hegel, and Freud rather than St. Paul and St. Augustine. I mentioned earlier Thomas More, who has long been regarded in this country as the patron saint of lawyers, and who has recently been declared by the Vatican the patron saint of politicians (I am not sure that is a promotion). One of the charges leveled by that canonized saint’s detractors was that, as Lord Chancellor, he was too quick to impose the death penalty.

“I am therefore happy to learn from the canonical experts I have consulted that the position set forth in Evangelium Vitae and in the latest version of the Catholic catechism does not purport to be binding teaching—that is, it need not be accepted by practicing Catholics, though they must give it thoughtful and respectful consideration. It would be remarkable to think otherwise—that a couple of paragraphs in an encyclical almost entirely devoted not to crime and punishment but to abortion and euthanasia was intended authoritatively to sweep aside (if one could) two thousand years of Christian teaching.

“So I have given this new position thoughtful and careful consideration—and I disagree. That is not to say I favor the death penalty (I am judicially and judiciously neutral on that point); it is only to say that I do not find the death penalty immoral. I am happy to have reached that conclusion, because I like my job, and would rather not resign. And I am happy because I do not think it would be a good thing if American Catholics running for legislative office had to oppose the death penalty (most of them would not be elected); if American Catholics running for Governor had to promise commutation of all death sentences (most of them would never reach the Governor’s mansion); if American Catholics were ineligible to go on the bench in all jurisdictions imposing the death penalty; or if American Catholics were subject to recusal when called for jury duty in capital cases.

“I find it ironic that the Church’s new (albeit nonbinding) position on the death penalty—which, if accepted, would have these disastrous consequences—is said to rest upon “prudential considerations.” Is it prudent, when one is not certain enough about the point to proclaim it in a binding manner (and with good reason, given the long and consistent Christian tradition to the contrary), to effectively urge the retirement of Catholics from public life in a country where the federal government and thirty–eight of the states (comprising about 85 percent of the population) believe the death penalty is sometimes just and appropriate? Is it prudent to imperil acceptance of the Church’s hard but traditional teachings on birth control and abortion and euthanasia (teachings that have been proclaimed in a binding manner, a distinction that the average Catholic layman is unlikely to grasp) by packaging them—under the wrapper “respect for life”—with another uncongenial doctrine that everyone knows does not represent the traditional Christian view? Perhaps, one is invited to conclude, all four of them are recently made–up. We need some new staffers at the Congregation of Prudence in the Vatican. At least the new doctrine should have been urged only upon secular Europe, where it is at home.”

End of Excerpt

Justice Scalia also discussed role of the death penalty as retribution for heinous crimes in his concurring opinion in Callins v. Collins 510 U.S. 1141 (1994) in response to Justice Blackmun famous (in some circles) quote “I shall no longer with the machinery of death.”:

“Convictions in opposition to the death penalty are often passionate and deeply held. That would be no excuse for reading them into a Constitution that does not contain them, even if they represented the convictions of a majority of Americans. Much less is there any excuse for using that course to thrust a minority's views upon the people. Justice Blackmun begins his statement by describing with poignancy the death of a convicted murderer by lethal injection. He chooses, as the case in which to make that statement, one of the less brutal of the murders that regularly come before us — the murder of a man ripped by a bullet suddenly and unexpectedly, with no opportunity to prepare himself and his affairs, and left to bleed to death on the floor of a tavern. The death-by-injection which Justice Blackmun describes looks pretty desirable next to that. It looks even better next to some of the other cases currently before us which JUSTICE BLACKMUN did not select as the vehicle for his announcement that the death penalty is always unconstitutional — for example, the case of the 11-year-old girl raped by four men and then killed by stuffing her panties down her throat. See McCollum v. North Carolina, cert. pending, No. 93-7200. How enviable a quiet death by lethal injection compared with that! If the people conclude that such more brutal deaths may be deterred by capital punishment; indeed, if they merely conclude that justice requires such brutal deaths to be avenged by capital punishment; the creation of false, untextual, and unhistorical contradictions within "the Court's Eighth Amendment jurisprudence" should not prevent them.”

(End of quote).

My point in presenting these excerpts is plain: It has always been Catholic doctrine that the death penalty is justifiable on grounds of retribution. Of course modern societies can incarcerate perpetrators of atrocious crimes such as Timothy McVeigh, the 9/11 terrorists, the men responsible for the horrible dragging death of James Byrd in Texas, and the horrific Petit family home invasion and murder in Connecticut, and the atrocious murders of Channon Christian and Christopher Newsom in Tennessee, etc. etc. But as Justice Scalia argues, the ability of society to defend itself from future criminal conduct by such murderers once they have been apprehended does not constitute an argument against the legitimacy of retribution. For that reason, Professors Reid and Sisk’s statement that “(i)f lethal measures are no longer necessary for societal protection, then they become difficult or impossible to justify when other available means of punishment are ‘more in conformity with the dignity of the human person’” simply constitutes an evasion of the traditional and primary role of the death penalty as just retribution precisely because of the extreme violation of the inherent dignity of human persons caused by perpetrators of some murders.

Posted by: Michael J. Kelly | Oct 3, 2011 9:52:23 PM

Thanks, Mr. Kelly, for the comment and the citations. Marc

Posted by: Marc DeGirolami | Oct 3, 2011 10:06:09 PM


Thank you for the interview with Archbishop Chaput. Certainly, his view of a judge's role is closer to mine and yours, and most likely most of the folks on MOJ. However, most of Archbishop Chaput's other statements have said that Catholics cannot put aside their faith in their public roles. Therefore, the statement of leaving abortion to the states still seems to be a contradiction-is Justice Scalia saying that if a reverse Roe Vs. Wade came before the court that outlawed abortion at the national level and if he voted against it on federalist grounds, that he would not be acting against his Catholic beliefs? Don't forget the criticism that has come from sources such as First Things and Professor George of this site toward the federalist stance on abortion. And I cannot picture Archbishop Chaput or the hierarchy standing mute in such a circumstance either.

Also, JH, I am aware of the reasonable withdrawld stance of the USCCB that they took after our initial invasion of Iraq. They were trying, I believe, to make the best of a horrible situation with an immoral war. I have always applauded their efforts in questioning the legitmacy of the invasion against Catholic just war theory and wish they would continue to bring others to taks who supported this immoral, ill-advised and possibly criminal war.

Thales and Mr. Kelly, I take your points about the death penalty and Justice Scalia's more nuanced views that you, Mr. kelly, presented. However, the Cathecism, while it mentions the retributive aspects of the death penaly, is also says that it is not to be used when there are alternatives available. We have those alternatives here in the US and it doesn't matter the horror of the crime-what matters is that the killer still has his human dignity and that should not be violated. See Sr. Mary Ann Walsh's excellent post on this topic yesterday at the USCCB media blog.

Professor DeGirolami, I do not accuse Justice Scalia of coopoerating in evil as I would agree with you that is an awfully tough standard to understand. There is certainly room in the Cathecism for the detah penalty. However, I find Justice Scalia's seeming reliance on their being no mageterial teaching against the death penalty to be too easy an out. He is aware of what the Cathecism says about and how the US is able to find alternatives to protect the public from criminals. He is ware of the many statements individual bishops have made on the issue and for him to preten otherwise is just too easy.

Thanks, everyone, and forgive me if I did not address everyone's concerns.

Posted by: Edward Dougherty | Oct 4, 2011 11:45:51 AM