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From the September, 2002
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A Papal Remedy by Dennis Teti

A Papal Remedy

Capital Punishment, the Demise of Natural Law & John Paul II

by Dennis Teti

According to his own testimony, the late Oklahoma City mass murderer Timothy McVeigh was unable to distinguish between his own democratically chosen government and foreign tyrannies, could not tell the difference between fellow-citizens and invading soldiers, and shrugged off murdered innocent babies as “collateral damage.” If the term “moral monster” has any meaning at all, it surely refers to a person who, with no ability to perceive those distinctions, acts violently on the basis of that inability. Such a monster was McVeigh.

Nevertheless, Pope John Paul II, taking his usual strong stand against every application of capital punishment, petitioned President Bush for clemency to commute McVeigh’s death sentence.

Catholic commentators have reacted to the pope’s “new turn” in two ways. Some, who had favored the death penalty until it was criticized in an encyclical a decade ago, now defend a presumed papal authority to alter many centuries of magisterial doctrine on the subject. Others, however, criticize the pope for making that very presumption. Both sides, I contend, are mistaken.

Although John Paul has yet to spell out entirely the logic of his position on capital punishment, he has called it “cruel” and “unnecessary” and located its practice within the context of today’s “culture of death.” Still, the pope has never said that the death penalty violates the principle of justice.

Roman Catholics believe that papal authority, even when exercised infallibly (which is not the case here), falls within certain well-understood and defining contexts; for example, it cannot disregard either the Bible or previous pronouncements of the church’s magisterium, though it can express and further explain them. Now with respect to the principle of justice that requires the death penalty, both Sacred Scripture and the Catholic tradition are unambiguous about the legitimacy of capital punishment in principle. It would be wrong, then, for a Catholic simply to suppose that Pope John Paul’s intention is to contradict either the revealed Word of God or the ancient tradition supporting recourse to this ultimate penalty.

The most reasonable explanation for the current pope’s stance on this question is that his opposition is an exercise in prudence, which is the application of eternally true principles to the changing circumstances of time and place. The highest virtue of political action, prudence involves making judgments about which well-intentioned men may in good conscience disagree. Prudence is not a relativism that denies either the existence or the knowability of eternal or objective truths. Disagreements about prudential judgments are legitimate and should be expected, because not all contemporary circumstances can be perfectly known or future circumstances safely predicted. Aspects of this uncertainty constitute the proper matter for deliberation, balance, and debate.

The Old Testament & Capital Punishment

One of the two best-known biblical endorsements of capital punishment resides in the Old Testament, the other in the New. As always, accurate biblical interpretation requires more than the mere quotation of an isolated verse or two; it is essential, rather, to consider such verses within their entire textual economy, and in both texts to be examined here, their respective settings shed helpful light on the textual intention. I will argue that even the scriptural demand to execute murderers paradoxically finds its justification in Jesus’ two great commandments of love: “‘Teacher, which is the great commandment in the law?’ And [Jesus] said to him, ‘You shall love the Lord your God with all your heart, and with all your soul, and with all your mind. This is the great and first commandment. And a second is like it, You shall love your neighbor as yourself. On these two commandments depend all the law and the prophets’” (Matt. 22:36–401).

The biblical teaching favoring the death penalty is indisputably clear. God himself obliges Israel to carry out capital punishment, instructing Moses in Leviticus 24:17, 21: “He who kills a man shall be put to death.” Again, in Numbers 35:31, God says: “You shall accept no ransom for the life of a murderer, who is guilty of death; but he shall be put to death.”

One might object to these commands on the ground that they come from God’s covenantal law with his people Israel rather than from his universal law. They appear, however, as applications of the commandment “Thou shalt do no murder,” which everyone admits to be universal. The passages following Noah’s exit from the ark are among the most “pro-life” verses in all of Sacred Scripture. As God would not permit anyone to execute the fratricide Cain (4:14–15), so in the Noachic covenant we once again find the divinely given duty to execute murderers (9:6): “Whoever sheds the blood of man, by man shall his blood be shed; for God made man in His own image.” In other words, the obligation to execute murderers is pronounced, not to diminish but to confirm human dignity and God’s life-giving creative power. Man is forbidden to kill another man because in doing so, he assails his own Creator. As if to confirm that man reflects God in himself, he entrusts to man his own authority to “require the life” of those who murder.

The biblical injunction to execute murderers is established in a dramatic context rich in its affirmation of both man and God. Capital punishment is regarded as central to the culture of life. Because murder is an assault on life’s Creator, the ultimate punishment of murderers is an indispensable aspect of the greatest commandment: to love the Lord God with our very heart, soul, and mind—every faculty that sustains life.

The New Testament & Capital Punishment

In Romans 13 St. Paul specifies the locus of rightful authority to execute in the political order. Here again the larger context of the applicable verses throws light on their full teaching. Just prior to the pertinent passage, the apostle writes against vengeance (12:19 DR): “Revenge not yourselves, my dearly beloved; but give place unto wrath, for it is written: Revenge is mine, I will repay, saith the Lord.” Yet he instantly follows this injunction against revenge by requiring “every soul [to] be subject to higher powers,” adding, “there is no power but from God: and those that are, are ordained of God” (13:1). Paul teaches that the “prince” has been divinely given the authority to execute (13:3–5 DR): “princes are not a terror to the good work, but to the evil. . . . [I]f thou do that which is evil, fear: for he beareth not the sword in vain. For he is God’s minister: an avenger to execute wrath upon him that doth evil. Wherefore be subject of necessity, not only for wrath but also for conscience’ sake.” The “sword” not borne “in vain” is the standard weapon of execution (jus gladii). After recognizing the public authority’s right or duty to exercise the ultimate punishment, St. Paul returns to and completes his opening teaching against revenge: The law and the Ten Commandments are fulfilled in the love of neighbor (13:10).

Thus we have a verse sequence in which the first and third themes enclose the second:

1. Christians must not take revenge on those who do evil (12:17–21).

2. The public authority must punish evildoers, including use of capital punishment (13:1–5).

3. Obedience to the civil and moral law attains its “fulfillment,” perfection, or highest purpose in the love of neighbor (13:6–10).

The first striking feature of these verses is the contrast St. Paul draws between the personal claim to revenge, which he denies because it belongs to God alone, and the government’s right to be God’s “avenger,” which he sanctions. St. Paul requires Christians to obey the civil law not merely because government has a monopoly of power to enforce it (which is “legal positivism”), but as a matter of conscience, because government has divine sanction. The harshness of public justice is framed by the necessity of public peace and the end of personal love.

These passages also indicate the reason for the moral difference between private vengeance and public justice. St. Paul does not deny that terrible wrongs occur. The problem of vengeance is that it cannot rise above a private response, which elicits further violence. There was a dramatic illustration of this difference when the survivors and relatives of McVeigh’s victims were permitted to witness his execution in order to attain “closure.” Once the murderer actually stopped breathing, most of those witnesses denied feeling any such “closure.” Some, remembering the affliction of his victims, grew even angrier as they observed his peaceful death. Others said that his remorseless face would haunt them for the rest of their lives. For all the pop-psych talk about “closure,” the wish to watch McVeigh die was meant to satisfy revenge, not justice. St. Paul was right: Vengeance does not beget peace.

By granting power to execute evildoers to the officials of the community while denying private persons a right to vengeance, God establishes the conditions of peace that make it possible to love one’s neighbor as oneself. What is finally most striking about Romans’ placement of capital punishment with the public authority is that the ultimate penalty is as indispensable to the second great commandment as Genesis’s support of it is to the first.

The Character of this Scriptural Authority

Genesis’s injunction to capital punishment appears to be roughly equivalent to John Locke’s argument on the right of every man in a state of nature to execute actual or potential murderers. After all, the newly cleansed post-diluvian world of Noah and his family did resemble the Lockean state of nature without government: The first kingdom and cities did not arise until the third generation after Noah (Gen. 10:10f.). By the time of Moses, however, as the verses quoted from Leviticus and Numbers indicate, enforcement of the death penalty had been transferred to the public authority in Israel, and the Old Testament indication becomes Christian doctrine in Romans.

What is the decisive difference between the power of individual persons, to whom Scripture denies the right to kill, and that of the political community, which does exercise that right? Romans indicates conditions necessary to justify the authority to exercise capital punishment: The authority cannot be self-established; it must be “of God” or “instituted of God” (13:1 DR). It must not be “a terror to good conduct, but to bad” (13:3 DR). Moreover, the authority must not act merely to serve itself but “to serve God for you and your good” (13:4 JB).

We can reformulate these criteria as follows:

1. A public authority having the right to execute must adhere to transcendent standards of justice.

2. It must exercise that authority in order to discourage vicious acts and encourage virtue.

3. It must serve the common good.

The only entity capable of meeting these standards is a properly ordered political community that is based on a higher or transcendent truth.

Church Tradition on the Death Penalty

The Catechism of the Catholic Church is clear in enunciating the inherited doctrine on capital punishment, acknowledging that “the traditional teaching of the Church does not exclude recourse to the death penalty” (§ 2267). Speaking for that tradition, Augustine and Thomas Aquinas recognized the political authority’s right to execute certain criminals.

In The City of God, Augustine asks whether “we may put men to death without incurring the guilt of murder”? In response he writes: “they who have waged war in obedience to the divine command, or in conformity with His laws have represented in their persons the public justice or the wisdom of government, and in this capacity have put to death wicked men; such persons have by no means violated the commandment, ‘Thou shalt not kill.’” Officials exercise that ultimate authority in virtue of “a general law,” “a just law that applies generally” (I:21). The death penalty when carried out by public officials, according to Augustine, is legitimate under both divine and natural law.

Thomas Aquinas regarded some sins as so wicked that those who commit them surrender their human dignity: “Although it be evil in itself to kill a man so long as he preserve his dignity, yet it may be good to kill a man who has sinned, even as it is to kill a beast. For a bad man is worse than a beast, and is more harmful” (Summa Theologica II-II, q. 64, a. 2). Therefore, he writes, “the care of the common good is entrusted to persons of rank having public authority: wherefore they alone, and not private individuals, can lawfully put evildoers to death” (a. 3).

John Locke substantially agreed with Thomas’s reasoning on this point. A man who violates the law of nature, he wrote, and deviates “from the right rule of reason . . . so far becomes degenerate and declares himself to quit the principles of human nature and to be a noxious creature” (Second Treatise: Of Civil Government § 10). A murderer “hath, by the unjust violence and slaughter he hath committed upon one, declared war against all mankind; and therefore may be destroyed as a lion or a tiger, one of those wild savage beasts with whom man can have no society nor security” (§ 11; cf also § 16).

For both Aquinas and Locke, the death penalty does not deprive murderers of human dignity. The killer voluntarily surrendered it when he chose to assume the character of an animal that can only be ruled despotically, by the “fear and dread” of human beings (cf. Gen. 9:2).

Walter Berns, in his powerfully argued book For Capital Punishment, has pointed out that the first important work to propose abolition of the death penalty, Cesare Beccaria’s On Crimes and Punishments, published in 1764, was placed on the Vatican’s Index of Prohibited Books. Pontifical statements followed the essentials of that tradition until 1991. (In contrast, the US National Conference of Catholic Bishops in a 1980 pastoral letter opposed capital punishment, well before John Paul II.)

Capital Punishment in the American Founding

The American Founders regarded capital punishment as a legitimate exercise of public power under our political system. Considering that the supreme penalty was common throughout the states after the Revolution, the near silence on this issue in the original Constitution and in its predecessor, the Articles of Confederation, speaks loudly. Yet neither document is entirely silent. Both include a clause requiring states to surrender fugitives from justice who flee out of state before or after a trial that may impose death for crimes such as treason, which is singled out specifically. Moreover the Fifth Amendment acknowledges capital punishment three times: First, by establishing procedures under which “capital or otherwise infamous crime[s]” may be tried; next, by prohibiting a second trial for a crime that places the accused “in jeopardy of life”; and third, by forbidding the federal government to allow any person to be “deprived of life . . . without due process of law,” a prohibition extended to state trials in the Fourteenth Amendment ratified in 1868.

When Benedict Arnold’s British co-conspirator Major John André was condemned to death for spying during the Revolutionary War, General George Washington refused to commute his sentence even though he was pressured to do so. Thomas Jefferson, who knew and partly agreed with Beccaria’s book on crimes and punishments, nevertheless drafted legislation for Virginia proposing the ultimate penalty for murder and treason.

This attitude toward capital punishment exemplified the Founders’ belief that the death penalty is consistent with the natural-rights philosophy on which the American Revolution was explicitly based. The entire argument in the Declaration of Independence rests on a moral and political truth held by the Founders to be “self-evident”: that government exists to secure the natural rights of all. The first right mentioned is “life,” followed by “liberty” and “the pursuit of happiness.” These rights, which are given by God, explain in what respect all men are said to be “created equal.” The ground of the truth about equality and natural rights is “the Laws of Nature and of Nature’s God,” and the only form of government that is legitimate, according to the Founders, is one that originates in that truth. Natural and divine laws are higher than positive laws enacted by governments, so the latter must be limited and ordered to the “ends” of the people’s “safety and happiness,” i.e., the security of their natural rights.

The Founders did not infer that government can never take away natural rights. No one supposed, for example, that government may not jail persons convicted of crimes, although the criminal is certainly deprived of his natural right to “liberty.” They held that natural rights cannot be denied arbitrarily—in the absence of good laws—so as to impose an “absolute despotism” or “absolute tyranny” over the people. The first charge in the Declaration’s list of complaints against King George III virtually includes the definition of arbitrary rule: “He has refused to Assent to Laws, the most wholesome and necessary for the public good.” A government that functions according to the rule of law to secure the people’s safety and happiness is not arbitrary, even when it takes away the natural rights of criminals—not excluding their life—who violate laws that are “wholesome and necessary” for the common good.

John Paul II on America’s Moral Vision

The current pope has often voiced great admiration for the “high moral vision” of the Founding Fathers. In 1997 as he accepted the credentials of the new US ambassador to the Holy See, he praised their idea of moral and political freedom: “Reading the founding documents of the United States, one has to be impressed by the concept of freedom they enshrine: a freedom designed to enable people to fulfill their duties and responsibilities toward the family and toward the common good of the community.” (Note his linkage of the family with the common good, as if to say that neither can be realized without the other.) Freedom, however, is not self-perpetuating. Every new generation of Americans must internalize the Founders’ self-evident truths, he observed.

Then the pope asked “whether the American democratic experiment would have been possible, or how well it will succeed in the future, without a deeply rooted vision of divine providence over the individual and over the fate of nations.” And he closed with this admonition:

Whenever a certain category of people—the unborn or the sick and old—are excluded from that protection [of law], a deadly anarchy subverts the original understanding of justice. The credibility of the United States will depend more and more on its promotion of a genuine culture of life, and on a renewed commitment to building a world in which the weakest and most vulnerable are welcomed and protected.

John Paul’s brief remarks could hardly suggest a starker opposition between the moral vision of the Founders and the culture of death in which we are now immersed. Their view was that law must be ordered to the common good under standards given by God and nature; the view in our contemporary culture is that law knows no limits apart from those we ourselves choose to impose.

Legal and political practitioners now subscribe to the opinion that we as individuals or as a community are our own law. We do not answer to God, nature, or any authority above our personal or collective will. Freedom does not mean conforming our will to moral truths, as both the Church and the Founders believed. According to the belief that currently dominates law, politics, literature, social science, the arts, and the academy, freedom is radical autonomy, a total separation of human choice and action from any conception of objective, superior truth that could provide moral guidance to man. In short, it is difficult to imagine a greater reversal in thought than that between the Founders’ thinking, based on natural reason and the revealed Word, and contemporary thought, rooted in metaphysical nihilism, moral relativism, and legal positivism.

Few people grasp this reversal in thought with greater clarity and deeper concern than this philosopher-pope, John Paul. If the culture of death were not the central problem of our age, the death penalty would not be an issue today.

Modern Government & Legal Positivism

What the current pope calls “the culture of death” has had a profound impact on America’s understanding of constitutional self-government. The most decisive contemporary interpretation of our political system and its ends can be found in the opinions of the judicial branch of our government. This is not to say that all Americans agree with our judges. To the contrary, the most divisive social issues are the result of deep disagreements about judicial holdings. But the influence of the courts is immense, controlling in large measure the functioning of law and our political institutions. No other institution can rival the courts in articulating the authoritative understanding governing our laws and way of life.

A case can be made that American government as it functions at present is abandoning the three criteria proposed by Sacred Scripture to authorize public authorities to carry out the sentence of death. There is growing evidence that some police and prosecutors are so determined to gain criminal convictions that they become indifferent or even hostile to contrary evidence. In Prince George’s County, Maryland, journalists recently uncovered the widespread practice of coercing confessions from exhausted detainees denied counsel, even when DNA evidence in conflict with these “confessions” is easily obtainable. Experts in American criminal justice issues have argued that the number of inmates wrongly convicted of capital crimes and awaiting execution is surprisingly large and is often due to misconduct by prosecutors and police.

Innocent people have suffered execution throughout recorded history, however. The biblical authors, Thomas Aquinas, and America’s Founders were not naïve. They thought that if the political system endeavored to meet the standards of legitimacy, occasional miscarriages of justice, however tragic, did not discredit society’s authority to punish murderers with death.

But the government’s abandonment of the criteria authorizing use of the death penalty need not depend on such abuse of criminal justice. It may also depend on other critical issues relative to the common good and the encouragement of public virtue with respect to the tradition of marriage, the family, and sexual norms. When the traditional family and the habits of virtue that foster it are not protected and supported by government, the common good is in danger of dissolution, and vices of every kind proliferate. Such a community loses its moral authority to execute those who do wrong simply because it has lost its sense of right and wrong.

Our judiciary seems especially afflicted with this loss. Inspect the current judicial attitudes towards marriage, for instance. Jurists of the founding generation, such as James Wilson, Joseph Story, and James Kent, held that the good of the entire community depended on the integrity of the bond between man and wife. In recent decades, however, the American judiciary has slowly subverted the institution of marriage, degrading the first of social bonds to the status of a mere association lacking even the legal obligations of an ordinary business contract.

Judges in several states—successfully in Vermont—have held that persons of the same sex may marry or form a “civil union” with all the legal benefits of marriage, including the adoption of children. The judge-led assault on marriage is occurring because the very concept of the “common good” is thought to interfere with individual freedom.

Similarly, the judiciary is also preventing society from discouraging or even criticizing homosexual behavior, which has always been recognized as a vice. The US Supreme Court has asserted that only “animus,” or hatred, could explain why people would vote to deny, not equal rights, but special privileges for homosexuals. That our government should encourage vulnerable young people to practice the unnatural vice despite the knowledge that sodomy is a burgeoning public health menace is another proof that the common good has been overruled by the culture of death.

The American judicial system has also given up its effort to limit the law according to a higher standard. Early in the twentieth century, the Supreme Court committed itself to a jurisprudence based on the denial that the Constitution has any fixed meaning. Rather, it “evolves” over time. The Court’s opinion in a 1976 capital punishment case, Gregg v. Georgia, is typical:

The Eighth Amendment has not been regarded as a static concept. As Chief Justice Warren said, in an oft-quoted phrase, ‘[t]he Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.’ [quoted from Trop v. Dulles, 1958]. . . . Thus, an assessment of contemporary values concerning the infliction of a challenged sanction is relevant to the application of the Eighth Amendment. . . . [T]his assessment does not call for a subjective judgment. It requires, rather, that we look to objective indicia that reflect the public attitude toward a given sanction.

In holding that the Constitution’s standards are not “static,” the Supreme Court detached it from its basis in unchanging principles, particularly the “Laws of Nature and of Nature’s God” recognized in the Declaration as the foundation for all just governments. Constitutional rights based on “evolving standards” have become relative, as pronounced in the famous “mystery” passage in Planned Parenthood of Southeastern Pennsylvania v. Casey, confirming the judicially invented abortion license:

These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.

The Casey argument for subjective freedom has often been invoked at all levels of government, but it is so obviously self-contradictory that the Justices are quickly moving beyond it. Now they assert that the Constitution is founded on no truth at all! Here is Justice Anthony Kennedy writing for the Court in May 2000 in U.S. v. Playboy Entertainment Group:

When a student first encounters our free speech jurisprudence, he or she might think it is influenced by the philosophy that one idea is as good as any other, and that in art and literature objective standards of style, taste, decorum, beauty, and esthetics are deemed by the Constitution to be inappropriate, indeed unattainable. Quite the opposite is true. The Constitution no more enforces a relativistic philosophy or moral nihilism than it does any other point of view. [my emphasis]

If it is true that the supreme law of the land enforces no point of view, a citizen may ask what reason he has to obey any law made under this Constitution? The only compelling answer would be the power or force that government wields. But if American political power has no foundation beyond the collective will of the people, we have surrendered our moral right to carry out the death penalty. We are unable to justify the execution of murderers either by the criteria of the Bible or by the principles established by our Founders. Absent a higher authorization for capital punishment, government comes to resemble a criminal syndicate that exercises vengeance, not justice, and maintains power by the preponderance of force.

Americans seem ever more reluctant to articulate any reasons to make judgments concerning good and evil behavior, and therefore to punish those who commit heinous crimes. It becomes increasingly difficult to explain precisely what is wrong with McVeigh’s terrorism in terms that do not implicate ourselves. McVeigh neither claimed nor was found to be non compos mentis. But opinions like his don’t arise out of an intellectual vacuum. Men are not naturally inclined to think of other human beings as expendable objects. Moral deformations as monstrous as his are acquired from someone else’s malformed ideas. When the pope refers to the culture of death, he is surely thinking of the bizarre ideas propagated by some influential academics. Peter Singer of Princeton comes to mind as one example that could be multiplied many times over.

Some Americans who were quite rightly incensed at McVeigh’s provocative description of murdered children as “collateral damage” have no response when Professor Singer equates the killing of infants with catching fish or defends the superior moral significance of dogs and pigs as compared to babies. McVeigh may or may not have read Singer, but the professor’s opinions speak for the intellectual avant-garde of our epoch’s culture of death. While McVeigh got the chair of execution, Singer got the chair of “ethics” at a great university.

When the pope addresses the culture of death, he usually says that it is characterized by the inclination to kill human beings who are “inconvenient” to others—the unborn child “accidentally” conceived just when the mother’s career is progressing; the elderly comatose patient whose children are emotionally and financially drained by long-term health care costs; and, from this point of view, the killer whose existence threatens ourselves and our loved ones. A Timothy McVeigh is inconvenient—costing 168 lives and more than a hundred million dollars in property damage, government expense, and uncounted medical costs. We want inconvenient persons out of our way.

The pontiff’s criticism of “convenience” killing echoes the language the political philosopher John Locke used to describe the state of nature with its “inconveniences.” According to Locke, life and well-being are always at risk in the condition where no government exists, because every man potentially threatens others, and the strong impose their will on the weak. Men form a social contract creating a government in order to escape what he euphemistically calls the “inconveniences” of the natural state—the constant prospect of death, theft, and oppression. The effectiveness of government will be judged by the standard of the “law of nature” according to which every life is to be preserved. For the pope to speak of the “convenient” killing of the weak and the powerless is to suggest that modern society resembles, or is reverting to, that Lockean state of nature where the will of the strong prevails and moral principles can have no practical effect.

The Loss of High Moral Vision

The American Founders thought that for the first time in human experience, man had escaped the state of nature by the American Revolution, the proclamation of natural rights in the Declaration of Independence, and the establishment of self-government through the Constitution. Based on “the Laws of Nature and of Nature’s God,” the Constitution was limited by transcendent standards of right and wrong. Indeed, it was designed to bring those standards to bear through limited legislation, the execution of laws, and the political administration of society. Their concept of constitutional self-government acting to secure the natural right to life was meant to honor and realize human dignity as derived from the divine image and to do justice to the biblical teaching we have examined, by which capital punishment is justified. The Founders, like the Christian tradition on which they drew, located the power to execute murderers who assail God’s image in man not in a culture of death but within a culture of life, justice, and love.

To understand the pope’s crusade against the death penalty, one must ask whether modern liberal society has surrendered all claims to be guided by the American Founders’ “high moral vision” based on natural and divine law. Is it the whole people, or the learned classes and professional elite, who have done so? Have our political institutions, especially those connected with criminal justice—police, judges, prosecutors, prison administrators, and so forth—been fatally compromised by the nihilism of modern society? Or did our Founders anchor our institutions more deeply in the original principles of the Declaration? What noble rhetoric and political deeds are necessary for the United States to recover its original moral vision, as Abraham Lincoln did in the nineteenth century by abolishing the abomination of slavery, though not without the high price of civil war?

Professor Steven Long2 has made a persuasive case that John Paul II’s call to end the death penalty is “medicinal” in the Thomistic sense. The pope’s purpose is a prudent one: to restore the moral health of modern liberal society by exposing the consequences of the nihilistic denial of transcendent standards of justice. One could even say that John Paul’s “medicine” is the mildest our political illness may admit. So far, he has done no more than point out that legal positivism, the claim that all power comes from the end of a gun, cannot give the community moral authority to take a single human life. One could raise a tougher question: How can legal positivism provide government with a moral right to impose not only the death penalty but jail sentences, monetary fines—any criminal punishment at all?  

Notes:

1. All biblical quotations are taken from the Revised Standard Version except those notated as DR (Douay-Rheims) or JB (Jerusalem Bible), where those translations better convey the sense.

2. “Evangelium Vitae, St. Thomas Aquinas, and the Death Penalty,” The Thomist, 63, 4, October, 1999, pp. 511–552. Dr. Long’s is the most thoughtful effort I have seen to come to grips with, and do justice to, the pope’s purposes within Catholic tradition. Another excellent article also emphasizing the prudential nature of the new doctrine is by Avery Cardinal Dulles, “Catholicism and Capital Punishment,” First Things, 112, April 2001, pp. 30–35. See also “Avery Cardinal Dulles and His Critics: An Exchange on Capital Punishment,” First Things, 115, August/September 2001.

Dennis Teti, a Roman Catholic, lives in Hyattsville, Maryland, and has taught constitutional law, political philosophy, and related subjects for Regent University and Hillsdale College.

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