Little Moral Gems
From Antonin Scalia
Supreme Court Justice Antonin Scalia is of the opinion that any Catholic
federal judge should resign if he agrees with the Pope that the
death penalty is immoral.
The Catholic justice handed down his opinion at a forum in
Chicago, and repeated it later in Washington. His Chicago explication
was the more complete of
...the choice for the judge who believes the death penalty to be immoral is
resignation rather than simply ignoring duly enacted constitutional laws and
sabotaging the death penalty.
Mr. Scalia was editor of the Harvard Law Review and served in President
Nixons Justice Department. No doubt we could all do worse than to take moral
instruction from him.
But lets try anyway.
I take the justice to mean that any official who is torn between his
religion and his secular duties should resign from those secular duties
unless he feels, as Justice Scalia himself does in the matter of the death
penalty, that the Pope happens to be full of it on this particular point.
Then the official should follow the devices and desires of his own
President Nixon, for example, used to be attacked for betraying the pacifist
tenets of his Quaker faith by dragging out the Vietnam War until he could be
reelected. Playing under Scalia rules he should have resigned instead,
turning the whole mess over to Spiro Agnew. Or should he?
White House tapes that have since become available show clearly that Mr.
Nixon believed William Penn to have been totally out to lunch on the whole
pacifist thing. Knowing this, we can now see that Mr.
Nixon was in fact taking the moral high road. The easy thing to do
would have been to end the war right away, which is what he had promised to do
in his 1968 campaign. But it wouldnt have been right. Besides, he never
actually came right out and said which election.
Now it is true that Mr. Nixon was merely a president, and
Justice Scalia addressed his moral instruction to federal judges. But
presidents, prosecutors, and even attorneys are also judges in their humble way.
John Ashcroft, for instance, is just as much a servant of the great
corpus of the law as Justice Scalia is. After all, what is prosecutorial discretion but
an exercise of judgment? And so Mr. Ashcroft, too, falls within the purview of the Scalia
At first glance this would appear to be bad news for the attorney general.
Let us pick just one from the many moral issues on which he disagrees with
the body of law he swore to uphold. Let us pick abortion.
The Pentecostal Church and Mr. Ashcroft agree that abortion is an
abomination in the eyes of the Lord, and yet it remains inconveniently legal.
We would hardly want Mr. Ashcroft to slither around sabotaging the law
like some bleeding-heart Catholic judge who opposes the death penalty. Just
as that judge should resign as a matter of personal and public morality, so
too should Mr. Ashcroft. Justice Scalia is very strict on that point.
But fortunately there is an exception to the harsh Scalia doctrine which
will spare both the attorney generals moral sensibilities and his job.
Justice Scalia has not spelled out that exception clearly in public fora, as
he has done with the death penalty. He has instead presented it to us in
parable form, a parable not told in words but acted out before
our eyes. Here it is:
Article 1 of our Enduring Constitution, as Justice Scalia enjoys referring to
the Grand Old Document, requires that the Times, Places and Manner of
holding Elections...shall be prescribed in each State by the Legislature thereof.
Not long ago an election was held in Florida, a state. The U.S. Supreme
Court came to hear of this election, and to perceive that the application of
state law to it might very well send a Democrat to the White House.
What Would the Justice Do? Resign from the court? Or would it be better
just this once simply to ignore his beloved Constitution and sabotage
states rights? Well, after all, why not? A foolish consistency is the
hobgoblin of little minds, not of Harvard Law Review editors.
Mr. Scalia turned his moral nature loose from its customary close confinement and
forced himself to do what was merely right, no matter if it was unconstitutional. Reluctantly, nobly, he voted Republican.
John Ashcroft himself could hardly do less. Nor has he.