Justice Barrett and the Death Penalty

America Magazine contributor, Father James Martin, S.J., posted on Facebook about the new Justice not voting to stay an execution. I had a few comments when the post landed on the U.S. Politics Catholic Discussion Group on Facebook. So many that a blog entry is called for.

From Martin:

Breaking: This means that Justice Amy Coney Barrett, in defiance of Catholic pro-life teaching, has voted to execute someone.  The death penalty is, as the Catechism says, "inadmissible." 

Every life is sacred, from the unborn child in the womb to the inmate on death row.

 From me:

It takes 4 votes to hear a case to declare the death penalty to be a cruel and unusual punishment (unconvincing if lethal injection is done right or compared to life alone in a cell forever). Unless a convincing due process argument on the likelihood that innocents are executed and that the current appellate procedures are inadequate to prevent this (and 4 justices want to hear the argument), there is no constitutional reason to stop executions. 

On the moral side, the argument about God wanting us to protect life due to his sovereignty is based on the fallacy of arguing from authority.

The logical argument is whether convicted criminals are unreformable, constitute a danger to society both inside and outside prison and whether prisoners who are undeniably guilty and concede it want to die by euthanasia or slow torture.

Sovereignty of God arguments have no bearing on American law, nor does doctrine proceeding from this basis. Arguments in American law must be based in social contract theory, particularly Hobbes, Lock, Montesqueu and Rousseau. To better understand the basis for having such arguments, we must use the cultural bias theory of Mary Douglass and Aaron Wildavsky.

If this were an undergrad or graduate seminar, I would stop here and let students argue about how their philosophies and theories relate to the question at hand.

At this point I turned my attentions to tonight's episode of FBI: Most Wanted. I won't spoil the ending, but it was strangely relevant to the discussion. I continued:

First, let's look at culture. Where you stand depends on where you sit regarding the 4 basic cultural biases. Despotism is about one person controlling all, not as part of a group but as an absolute ruler. Kings, ditators and some Popes have been despots. Thomas Hobbs justified governmental despotism because, without it, man is violent and out of control. Liberty in the state of nature was brutality.

When you combine social control group or tribal identity, the way of life is hierarchy. Decision making is more cooperative and one cab rise through the hierarchy by behaving by the rules. The Church generally lives here, at least when leaders do not behave like despots. Montesquieu is found here, with ordered liberty and hierarchical government.

Equality has groups with few rules. The main penalty is expulsion. The Church ideal is here, as is Locke when societies voluntarily form among free people to form a group of free people. Rousseau is here too, with society as a group that can only be compelled with unanimity, the general will. Absolute equality can also lead to group tyranny, either with a charismatic leader guiding a group that, on their own, cannot decide or the herd simply running amok. The French Reign of Terror and the Killing Fields of Cambodia are examples if this.

Libertarianism is unorganized in terms if group identity and in terms of rules. The fewer the better. Locke is here, as are the American founders.

Thomistic free will makes the conscience sovereign. The will seeks the good as presented to it by the intellect. While this can be a part of any of the four ways of life, it's existence flowers in democracy, where each are equally empowered to seek the good. Hobbes and the divine right of kings and Popes is replaced with society taking the place of the sovereign. To avoid Rousseau's tyranny of the mob, individuals have natural rights (not the same as hierarchic natural law). 

The duty of the ruler or ruling group to protect the society through its monopoly on violence found in the state of nature now rests up in all of us. 

This is a curse as well as a blessing. When there us a danger, it is all of our job to mitigate it, including through the use of execution if required. It is also our job to make sure execution is hygienic, rather than punitive. 

Government action also takes away the right of personal vengeance. If it does not act, or acts with bias in other matters, people seek revenge. If there is a role for Church, it is to help restore the spiritual health if the victims and their families for their own sakes, which also stops vengeance.

The same balancing is necessary in all life issues, except in this case, we are dealing with government action on matters already in the purview of government. Abortion rights take public action out of the equation.

Getting back to Justice Barrett, the ethics she must uphold are those of constitutional law based in democratic government within the bounds of natural liberties, not natural law. I am quite sure she understands and agrees with the basic issues as I have outlined. It is why her vote was appropriate. Other Catholics on the Court have the same philosophical background. This is not a Catholic issue, beyond bringing mercy to the victims and the families of the offenders.