Alan Dershowitz Calls Out Scalia

What is in the water up in Massachusetts? First, Barney Frank steps up and smacks down a ridiculous deather at a town hall, and then Alan Dershowitz calls out Antonin Scalia on the finer points of Catholic doctrine and his own writings.

Here's what Justice Scalia said recently about the death penalty and the law.

“This court has never held,” Justice Scalia wrote, “that the Constitution forbids the execution of a convicted defendant who had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.” - The New York Times, quoting Scalia's dissent in the Troy Davis case

And here's what the Catholic Church teaches about the death penalty.

Assuming that the guilty party's identity and responsibility have been fully determined, the traditional teaching of the Church does not exclude recourse to the death penalty, if this is the only possible way of effectively defending human lives against the unjust aggressor. - The Catechism of the Catholic Church

It is important to note that the Catechism specifies a two-part test for a justified execution in the eyes of the faith. First, the guilty party's identity and responsibility must have been fully determined. If new evidence, which exonerates the suspected party comes to light, then it is clear the identity of the guilty party has not been fully determined. Second, it must be the "only possible" mechanism for preventing the guilty party from doing further harm. Any case which fails the first test, must fail the second. If a person is not actually guilty, they cannot be an "unjust aggressor" for whom execution is the only possible defense for the community.

Now, here's what Justice Scalia said about Catholic judges who discover their faith and the law differ.

Last year, Scalia chastised Catholic judges who balk at imposing the death penalty -- another immoral act according to the church: "The choice for a judge who believes the death penalty to be immoral is resignation, rather than simply ignoring duly enacted constitutional laws and sabotaging the death penalty." - The LA Times

Now, Scalia is a conservative Catholic (as well as a conservative jurist). Traditionally, that means he accepts the Catholic church's teachings on morality as absolute. The Catechism is a critical source of moral truth for Catholics. The catechism teaches that executions are only moral if they pass a two part test. Scalia's dissent ignores that test in its entirety. Scalia's dissent holds that an innocent person may be put to death if all the processes provided in law were executed correctly.

Which brings us to Dershowitz.

Let us be clear precisely what this means. If a defendant were convicted, after a constitutionally unflawed trial, of murdering his wife, and then came to the Supreme Court with his very much alive wife at his side, and sought a new trial based on newly discovered evidence (namely that his wife was alive), these two justices would tell him, in effect: “Look, your wife may be alive as a matter of fact, but as a matter of constitutional law, she’s dead, and as for you, Mr. Innocent Defendant, you’re dead, too, since there is no constitutional right not to be executed merely because you’re innocent.”
...
But whatever 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?
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I hereby challenge Justice Scalia to a debate on whether Catholic doctrine permits the execution of a factually innocent person who has been tried, without constitutional flaw, but whose innocence is clearly established by new and indisputable evidence. Justice Scalia is always willing to debate issues involving religious teachings. He has done so, for example, with the great Rabbi Adin Steinsaltz, and with others as well. He also has debated me at the Harvard Law School. - Alan Dershowitz

You have to love the Jewish scholar calling out the Catholic Justice on the intersection between law, moral teaching and the responsibility of those entrusted with public office. (I mean, there's a South Park script in there somewhere it's so good. Either that, or a bunch of Plato's Dialogs.)

In my opinion, Justice Scalia has elevated the law itself above the teachings of his church, or the interests of justice itself. For Justice Scalia, the law is justice, rather than just a means of justice. It is up to Justice Scalia whether the law or the church's teachings should be superior (even though he's said and written that the faith should be the highest teaching), but it is the business of all Americans whether an innocent man (or woman) should be executed.

I will leave you with this scene from The West Wing, which makes the same point, with more eloquence than I could ever summon.



(With a tip-o-the-hat to David. Oh, and this was fun, too.)