Correspondence
(August/September 1998)

On the Death Penalty

I read James Nuechterlein’s essay "An Unwonted Uncertainty" (April) with appreciation of his intellectual uncertainty. As one who has studied and served in the fields of medicine, the military, and law enforcement, I would only carry his fine thoughts a little further.

In my book Death in the Balance: The Debate over Capital Punishment (1989), I point out that the death penalty is closely related to two other social issues that have received widespread attention in the past three decades: abortion and gun control. All three issues raise fundamental questions about life and death, especially the sanctity of life.

Relatively little consistency is to be found among the partisans on these issues. Many who support capital punishment oppose abortion and gun control. On the other hand, opponents of the death penalty often favor abortion.

If the sanctity of life were the only concern, left and right sides would have to unite in opposing the death penalty and abortion and in backing strict gun control. But such a position would receive little support across the political spectrum. Instead, the opposing sides stand by their long-stated attitudes, one group accusing the other of sentimental idealism and dreamlike compassion, the other charging its opposition with lack of heart and a tough realism that has little room for compassion .

James Nuechterlein’s tentative note was a rare, and to that extent welcome, word in First Things from a proponent of the death penalty. But he needlessly cedes the moral high ground by his statement that, should we who support the death penalty be wrong, "the judgment for error on this life or death issue will weigh on us more heavily than it will on those who have erred in the gentler direction." It would seem to follow that opponents of the death penalty have little reason to reexamine the evidence against their position. At the worst, they will have erred on the side of gentleness, and who needs to worry about that? Whereas we supporters of the death penalty must remember "every moment" that we "might be quite terribly wrong."

But the very arguments Mr. Nuechterlein makes earlier in his piece would, if consistently followed, allow him to repudiate this uneven placement of the burden of conscience. Mr. Nuechterlein states that the death penalty is an "indication of reverence" for innocent human life. Yet understood rightly, such an indication of reverence is not merely symbolic and dispensable, and those who want us to dispense with it are not the true advocates of gentleness. Consider the atrocities committed by many on death row—the tortures, sometimes tape-recorded by the torturers, the brutal murderers of innocent persons. If the state does not execute these criminals, they must either be freed or maintained for the rest of their days at the expense of those whose lives they disdain and whose fellow-citizens (not to mention children or parents) they have tortured and slaughtered. Would such a policy really represent "the gentler direction"? In framing the issue in such terms, we have once again allowed the victims, and the state’s duty to execute justice for their horrific deaths, to slip silently out of the picture .

Those who have, like Mr. Nuechterlein, seen the point of the death penalty must never forget that misguided "gentleness" to human predators is inhumane to the innocent and an abrogation of the government’s responsibility to "bear the sword" for the "punishment of evildoers." The death penalty is not just an option the ruler may decide to exercise if he feels inclined to be harsh; it is an obligation of government in a just society. Such life or death considerations should also give food for conscientious thought to the opponents of the death penalty. For if we are right, they will have contributed to the undermining of civilized rule and the objective failure to value innocent life aright.

It seems to me that in his piece on capital punishment James Nuechterlein has left out the best arguments of all in opposition to that practice, those of Jesus Christ. How about Matthew 5:44, "But I say to you, love your enemies and pray for those who persecute you"; Matthew 6:12, "And forgive us our debts, as we also have forgiven our debtors"; and Matthew 7:2, "For with the judgment you make you will be judged, and the measure you give will be the measure you get"? One could cite many other verses from both the Old and New Testaments, but it should suffice to say that, as Christians, we are bound to love all our neighbors, all the time. There are only two justifications for killing, self-defense and to prevent a murder. All other killing is, for a Christian, hypocrisy.

With respect to Karla Faye Tucker and the relationship of her case to the general subject of capital punishment: Had her plea of "conversion" been accepted, what a door would have been opened! Such a religious revival would have animated the nation’s prisons and especially the death rows as would have put the Great Awakening to shame. A clamor not only for Bibles but also for specific conversion programs and teachers thereof would have resounded from every death-celled monster in the nation. And in response, the right to become a born-again Christian (or something) and thereby ineligible for capital as well as any other punishment would have been found by many a liberal judge to be a vital part of the Bill of Rights, and the furnishing of every convicted criminal with a specialist in conversion would soon have become as essential a requirement of due process of law as the right to legal counsel.

Texas is to be congratulated for having refused to accept this novel plea, and for having by inference endorsed Ambrose Bierce’s definition of penitent:

"Penitent, adj. Undergoing or awaiting punishment."

James Nuechterlein’s poignant description of his transition from a fervent anti- to a hesitant pro-capital punishment position exactly captures the ambivalence which thoughtful Christians feel on this issue. I agree with Mr. Nuechterlein that most secular arguments against capital punishment are not finally persuasive. He does not mention, however, the one argument that does seem to me decisive: Christians believe that God has a plan of redemption for each human soul. For man to willfully cut short a human life is to risk preempting God’s plan and timetable. Whether God’s plan or timetable can be deflected is irrelevant; the attempt to do so is blasphemous.

James Nuechterlein has rationalized his way into deciding it is okay for the state to "whomp" people into eternity under certain circumstances. (Why is it people who are anti-abortion so often can’t seem to get that same logic to work for people after they’ve been born?) I will join him in supporting capital punishment—and in some cases a part of me wants to so much—when . . .

1. When the line between the guy who is executed and the guy who isn’t is much more closely delineated. We frequently let people live who are much more culpable than the ones we kill. Mr. Nuechterlein talks about "just." There is nothing remotely "just" about capital punishment as practiced anywhere in the world today.
2. When the barbarity of keeping someone locked up for decades in conditions that would have the Animal Rights people frothing at the mouth were the inmate a rabbit is ended.
3. When there is zero possibility of an innocent person being executed.
4. When someone convinces me that Christ’s orders to his people about how they are to behave don’t apply when voting for or against capital punishment. Society may not be under Christ’s orders, but we are, and I therefore as a Christian must oppose capital punishment no matter how much I want the "bad guy" to get it. Some things, like killing and divorce and wars, are always wrong, even when they are the only sane and viable alternatives left.
5. And thus, finally, I will join him in supporting capital punishment when that is the only sane and viable alternative left for dealing with people who do terrible and cruel things. We have many other alternatives at hand, but the majority keep voting to kill, while stretching the whole affair out and executing medically so we appear "civilized."

James Nuechterlein replies:

I thank Donald D. Hook, Lydia McGrew, and Park Chamberlain for their useful comments. Raymond H. Fischer quotes from the Gospel of Matthew to argue that followers of Christ must oppose the death penalty. But if Christians are to insist on that kind of literal translation of Jesus’ words into public policy prescriptions, then they must—given Mr. Fischer’s examples—oppose all forms of criminal punishment. To Ian A. Hunter I would simply suggest that, assuming divine foreknowledge, capital punishment is not at all inconsistent with the belief that "God has a plan of redemption for each human soul." As for Arthur E. Greer’s rant, I can only say that it’s the kind of argument that brings welcome ease to my occasional doubts about the death penalty.

Karol Wojtyla and Vatican II

I greatly appreciated Thomas Guarino’s substantial review of Rocco Buttiglione’s Karol Wojtyla: The Thought of the Man Who Became Pope John Paul II (April). There is, however, another dimension of Buttiglione’s book which needs attending to: i.e., Vatican II as a philosophical construct.

Buttiglione writes: "To interpret the Council is par excellence to do the work of Christian philosophy. But that does not imply an effort only of aggiornamento of Christian culture but much more progress in the general self-understanding of man, a step forward in the philosophical consciousness of all humanity" (emphasis added). In more than one place Buttiglione suggests that The Acting Person, written in 1969, derived its basic methodology and insights from Wojtyla’s participation in Vatican II (1962-1965). Therefore, the serious prospect arises that acquaintance with the philosophical handling of The Acting Person lends access to the philosophical substructure and meanings of the Council’s reflections.

It is generally appreciated today that The Acting Person is a fusion of Thomism and phenomenology. Even though Wojtyla was trained in the conceptualist Thomism of Garrigou-Lagrange, Buttiglione points out that he also draws on the more modern interpretation of Thomas’ thought, as in the "existentialist Thomism" of Gilson, Fabro, and De Finance. Much the same innovative flexibility is apparent in Wojtyla’s use of phenomenology deriving from Husserl, Scheler, and Sartre. In this essentially anthropological style of reflection, the Thomistic ontology, embracing the order of things in Truth and the order of things in Being, provides the metaphysical ground for the dynamic, descriptive phenomenology centered on the field of consciousness of the acting person. The methodology here involves a complementary dialectic of deduction and induction. Wojtyla’s reflections, accordingly, provide the key to Vatican II’s own reflections on the corporate consciousness of the Church, as the People of God, where the Person of Christ functions as the "paradigmatic person" of all its authentic ecclesial actions.

It was my research into Vatican II, not any interest in Wojtyla’s work, that first alerted me to the correlated use of Thomism and phenomenology at the Council. My book Vatican II and Phenomenology (1985) interpreted the Council’s methodology as a fusion of Aquinas and Husserl. As I became better acquainted with Wojtyla’s thought, I managed to correlate my own insights with his Scheler-inspired focus on values and their emotive dimensions. This was a major thesis of my 1991 book, Vatican II, Theophany, and the Phenomenon of Man. More pertinently, however, the Council manifested itself to me as a great sacramental epiphany of the Cosmic Christ projecting a vision of humanity transfigured in the ecclesial consciousness by the lumen gloriae. This quasi-incarnational presentation of God’s salvific plan and mankind’s eschatological destiny is the "cosmo theandric" ground of the Church’s contemporary resolve to build a "new civilization of love." This is her practical task for the third millennium.

Grisez’s Influence

Although Richard John Neuhaus rightly observes (While We’re At It, April) that Germain Grisez is one of the most impressive moral thinkers working today, he holds back from describing him as among the most "influential" in light of resistance to Grisez’s thought by non-Catholics and dissenting Catholic theologians.

Father Neuhaus needn’t have held back. Grisez’s influence has been profound. Informed readers of Veritatis Splendor have taken note of the respects in which Grisez’s pathbreaking work on the theory of human action shaped key aspects of that encyclical. Moreover, Grisez has plainly had a powerful impact on the thinking of some of the most brilliant and, by anybody’s account, influential younger Catholic theologians, philosophers, and legal scholars—start the list with Oxford’s John Finnis, Princeton’s Robert George, and Notre Dame’s Gerard Bradley.

Indeed, Grisez’s influence stretches beyond Catholic and even Christian circles. David Novak, arguably the most influential Jewish ethicist in the English-speaking world, completed his doctorate at Georgetown under Grisez’s supervision. Although Novak obviously does not share Grisez’s Catholic faith or important aspects of his theological program, it is easy to see Grisez’s influence in the philosophical sophistication and analytical rigor of Novak’s work.

The Population Picture

In While We’re At It (February), Richard John Neuhaus accuses Father Robert Drinan of failing to understand the world population picture. Father Neuhaus’ quotation from Bishop James McHugh even accuses him of "hiding behind a misrepresentation of the demographic data."

Much more probably, those who assume that the world population explosion will surely soon be over are the seers who fail to understand and, therefore, misrepresent the data. Projections of continued substantial fertility decline in the developing world have credibility only if larger proportions of couples in high-fertility nations gain effective access to family planning services. If they are denied that access, population could easily keep growing until soaring death rates cast their cruel veto.

Family planning programs should offer a variety of voluntary contraceptive options, including natural family planning techniques for couples who object to artificial contraception on religious or other personal grounds. Increased family planning aid from the U.S. and other rich nations would mean far fewer abortions and far fewer maternal and child deaths in the world. Such aid deserves the support of Catholics, other Christians, and all persons of good will.

Fr. Neuhaus also accused Fr. Drinan of "puffing a book filled with apocalyptic warnings." To allow your readers to judge the fairness of that accusation, please let me tell them: The book Fr. Drinan favorably reviewed in National Catholic Reporter and Bishop McHugh later rebuked is Ending the Explosion: Population Policies and Ethics for a Humane Future (1996).

As the beleaguered author of that book, perhaps I might, after due penitence, be forgiven for preferring Fr. Drinan’s praise to Fr. Neuhaus’ and Bishop McHugh’s rebukes. Even if the rebukes of me are partly justified, both critics err in suggesting that Ending the Explosion "promotes population control by any means so long as they are respectful of human freedom." While indeed urging that all means must respect human freedom, the book also insists that other aspects of human dignity must be honored as well. Contrary to what Bishop McHugh possibly surmised, neither the book nor its author promotes abortion or "sterilization of people with disabilities."

I do respectfully disagree with current papal teaching against artificial contraception. Even so, the policies advised in Ending the Explosion do not to me seem far afield from some words said by His Holiness Pope John Paul II: "It is the responsibility of the public authorities, within the limits of their legitimate competence, to issue directives which reconcile the containment of births and respect for the free and personal assumption of responsibility by individuals."

RJN replies:

The preponderance of scientific evidence, I believe, does not support the assumption that there is a "world population explosion," and thoroughly discredits Malthusian claims about "soaring death rates [casting] their cruel veto." Whatever his personal intentions, and whatever he might surmise about Bishop McHugh’s surmisings, Professor Hollingsworth’s argument supports the U.S. devoting hundreds of millions of dollars to population control policies that include coercive measures in flagrant contradiction of Catholic teaching and human dignity. For a thorough examination of the science and mythology of "population explosion," see Nicholas Eberhardt’s "Population Policy: Ideology as Science" (FT, January 1994). For a discussion of current U.S. population policy and alternatives to it, see the March 1998 issue of Life Insight (NCCB Pro-Life Secretariat, 3211 Fourth St., N.E., Washington, D.C. 20017).

Communists, Anarchists & the Spanish Civil War

In "Apologies on the Cheap" (Public Square, April), Richard John Neuhaus lists some of the good things General Franco and the Nationalists did. Citing Paul Claudel and Paul Johnson, he contrasts these with a very bad thing he says the Stalinists did during the Spanish Civil War: killing twelve thousand clergy and religious and destroying many churches. I’m writing to clear up this misunderstanding. The Communists did not commit these particular murders; rather, they avenged them.

In The Spanish Civil War, Burnett Bolloten notes that anarchism was especially strong in Catalonia and several other parts of Spain. Bakunin, the apostle of anarchism, preached militant atheism because he didn’t want to concede that God’s intelligence and will were far superior to his own. It was the Anarchists and a few revolutionary Marxists not loyal to Stalin who desecrated churches and killed people precisely because of their religious witness. The names, dates, and places of martyrdom are known for 6,832 religious personnel.

The Communists ended up fighting another civil war in Catalonia against the Anarchists and their allies, just like they did in Russia. This war also ended with the Communists soundly defeating the Anarchists and promptly filling graveyards and prisons with their enemies on the left. Is it irony or rough justice that some of those who murdered defenseless religious people were themselves firmly dealt with by triumphant Stalinists?

Balasuriya and Heresy

In While We’re At It (April), Richard John Neuhaus comments on the reconciliation of Sri Lankan theologian Tissa Balasuriya with the Roman Catholic Church. While Father Neuhaus acknowledges that Balasuriya’s apology was "something less than a clear admission of error," he urges those concerned about that to "stifle their suspicion" because "the important thing is that a prodigal has returned" and "salvation is forever." (Presumably the latter refers to Balasuriya’s destiny now that he has been reconciled with his church.)

There is a problem here. Balasuriya was excommunicated "for espousing heresy in his writings," and, since his apology was "something less than a clear admission of error," it seems that he continues to hold to his heretical views, even while regretting the harm his views have caused.

Now, the Bible makes it clear that one’s salvation is fundamentally dependent upon what he believes (see, for example, John 3:16-18, Romans 10:8-11, Hebrews 11:6); thus, a heretic, who denies one or more salvific doctrines, cannot be saved. Presumably, the Roman Catholic Church admits this, else why would Balasuriya have incurred excommunication in the first place? Yet Fr. Neuhaus suggests that since Balasuriya has been reconciled with his church, he will be saved, even though he may continue to hold to heretical beliefs.

I have long suspected that the Roman Catholic Church doesn’t really care what one believes, as long as he is a member of the Church and does not challenge its authority. (It seems that historically the Church has not usually excommunicated even the most off-the-wall heretics until and unless they began to pose a threat to the Church’s authority.) Fr. Neuhaus’ admonition regarding Balasuriya goes a long way toward confirming this suspicion.

RJN replies:

I am not privy to the internal conversations between Father Balasuriya and Rome, as I assume Mr. Tors is not. The theologian’s clarification satisfied Rome that he is not teaching heresy. My simple suggestion was that we should not presume to second-guess those who have the competence to make the decision they made. Permit me to suggest that Mr. Tors’ suspicion is more in the nature of a weary anti-Catholic slander. In any event, in Catholic teaching excommunication is the judgment of the Church that someone has removed himself from communion, which is always subject to the ultimate judgment of God, who alone knows the state of a person’s soul.

Vietnam Revisited

An intriguing phrase about Vietnam in the brief notice of my book The Irony of Virtue: Ethics and American Power (April) prompts some words of reflection and, I hope, healing.

The reference to my "stormy path to Niebuhrian ‘realism’ that he staunchly defended during the Vietnam years" is accurate, but to some it may suggest that I uncritically supported America’s tragic war in Southeast Asia. That was not the case.

At that time, most Americans, and certainly our government, saw the contest between communism and the West as a zero-sum game. The reigning containment doctrine that worked in Europe was extended to Asia. It succeeded in the Korean War, widely seen as the precedent for Vietnam. In Southeast Asia our motives were honorable, but our strategic appraisal was flawed.

In 1968, I was drawn into the Vietnam debate at the Democratic Party Convention in Chicago. I wrote the foreign policy and defense portions of the platform, including the Vietnam plank that was adopted without amendment. Ted Sorensen wrote the minority plank.

Even before Chicago erupted, it was clear to President Lyndon Johnson that the central moral and political question was how to extricate ourselves from the quagmire with honor. Both "doves" and "hawks" wanted to get out, but they differed radically on means. In my view, the former wanted to cut and run regardless of the consequences while the latter wanted to salvage what freedom and hope we could.

After his election in 1968, Richard Nixon made a significant but largely unacknowledged clarification of the Vietnam dilemma. He modified pre vailing zero-sum Cold War assumptions by developing a more realis-
tic strategic assessment. Though Moscow and Beijing supported Hanoi’s conquest of the South, President Nixon concluded that South Vietnam was not as vital to containing Communist expansion as was South Korea. He wanted to help defend Saigon, but felt the commitment of U.S. combat troops to a less-than-vital area was not a prudent use of American blood and treasure.

In the end, left-wing charges of imperial arrogance do not hold up. But widespread misperceptions, strategic miscalculations, and the less than candid disclosure of two Presidents exacted a toll on our national psyche and split our historical memory. To heal that split, erstwhile "hawks" and "doves" might well acknowledge their flaws.

Despite many failings, our involvement was not a total foreign policy disaster. Johnson’s and Nixon’s steadfastness assured allies in Europe and the Pacific that an America that would not abandon far-off Vietnam would hardly abandon them. Further, holding the line as long as we did bought time for Thailand, Indonesia, Malaysia, Singapore, and the Philippines to marshal their energies against Communist subversion, a point made forcefully by Singapore’s Lee Kuan Yew.

But perhaps most significant, Vietnam helped us dispel what Denis Brogan once called "the illusion of American omnipotence"—and I would add, the illusion of American innocence.

Catholics and Capital Punishment

In "A Position Not, or Not Yet, Mandated" (Public Square, April), Richard John Neuhaus states that "proponents of capital punishment
. . . contend that the death penalty is necessary to protect society." "Before Evangelium Vitae (EV) their position was in the mainstream of magisterial Catholic doctrine, and it is certainly a position that is still permissible and within the bounds of the Church’s teaching." This is misleading because it is incomplete. EV’s enhanced requirement that the death penalty can be used only "in cases of absolute necessity . . . when it would not be possible to defend society" refers not to some generalized protection of society by imposing retribution or by deterring potential offenders. Rather it refers only to the protection of society from this convicted criminal. "Among the signs of hope," EV stated, "there is evidence of a growing public opposition to the death penalty, even when such a penalty is seen as a kind of legitimate defense on the part of society. Modern society in fact has the means of effectively suppressing crime by rendering criminals harmless without definitively denying the chance to reform" (emphasis added).

The final text of the Catechism of the Catholic Church makes it explicitly clear that a Catholic can no longer argue for the death penalty from an undifferentiated need "to protect society": "[T]he 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. If, however, nonlethal means are sufficient to defend and protect people’s safety from the aggressor, authority will limit itself to such means. . . . Today . . . as a consequence of the possibilities which the state has for effectively preventing crime, by rendering one who has committed an offense incapable of doing harm . . . the cases in which the execution of the offender is an absolute necessity are very rare, if not practically nonexistent" (emphasis added).

A Catholic could still argue for the death penalty in limited cases, such as a prisoner serving a life sentence who murders a guard or another inmate. What sense would it make to give him another life sentence? Or would it be consistent with his dignity to wall him up permanently in a cell, with food and wastes passed through an aperture and with no direct contact ever with any other human being? Other cases could be argued, such as a condition of unrest in which the authorities would lack the means to keep a murderer securely imprisoned. The death penalty could be argued to be absolutely necessary in such cases, although even there it is debatable. But the criterion is protection of society from this criminal.

Before EV, I and others supported the use of the death penalty because it seemed to be necessary to restore the balance of justice and because it promoted respect for innocent life by inflicting a punishment for murder that was qualitatively different from the punishment for other crimes. But the Vicar of Christ has raised the discussion to a new level, making the old arguments obsolete. John Paul authoritatively challenges the claim of the state to assume the jurisdiction of God over life and death. After discussing the death penalty, EV states, "If such great care must be taken to respect every life, even that of criminals and unjust aggressors, the commandment, ‘You shall not kill’ has absolute value when it refers to the innocent person" (emphasis in original). If we owe such respect to the life of the guilty, so much the more, and absolutely so, with respect to the innocent. But this works the other way, too. If we would maintain the absolute inviolability of innocent life, we must begin by safeguarding even the life of the guilty from termination except according to the very restrictive law of God.

RJN replies:

While Professor Rice makes his point very effectively, I think I will, at least for the time being, stay with my earlier statement of the matter. While, as I wrote, we are witnessing a development of doctrine with respect to capital punishment, I am not as sure as Prof. Rice that the process of discernment and teaching has been authoritatively concluded in the way he suggests. This is a subject to which I and others will likely return in these pages.