Wednesday, March 10, 2004

On Justice Scalia and the Death Penalty

I got myself tangled into a discussion about Justice Scalia and Evangelium Vitae over at Fr. Sibley's Blog. That's what comes from "creatively interpreting" one's Lenten resolutions -- posting on comment boxes isn't really blogging, is it? Anyhow, this is a larger reply than I can put on the comment boxes and so I'm going to put it up here before my guardian angel notices and whacks me on the head again. This subject is, by the way, something I'm going to blog on after lent. So without further ado, my reply to "David" (who is not "David Kubiak" in the thread at Fr. Sibley's). It may not make any sense, unless you read the thread, but here it is:



I've already emailed you this privately, but since you also commented on Fr. Sibley's blog to the same effect, I'll reproduce my reply here. As I told you in my letter, I don't need to "add" Dulles; there is no list, and "contempt" is something being interjected into the debate by you and not me. I'd recommend you read Cardinal Dulles' comments and response to questions, which can be found here. Nowhere does Cardinal Dulles undertake to determine whether Evangelium Vitae is an ex cathedra pronouncement. The reason for that is simple. Evangelium Vitae, like Humanae Vitae or any other encyclical you can name, is not an ex cathedra pronouncement. As you may know, the First Dogmatic Constitution on the Church of Christ issued by the First Vatican Council recognizes several characteristics of an ex cathedra pronouncement:
[W]e teach and define as a divinely revealed dogma that when the Roman Pontiff speaks EX CATHEDRA, that is, when, in the exercise of his office as shepherd and teacher of all Christians, in virtue of his supreme apostolic authority, he defines a doctrine concerning faith or morals to be held by the whole Church, he possesses, by the divine assistance promised to him in blessed Peter, that infallibility which the divine Redeemer willed his Church to enjoy in defining doctrine concerning faith or morals. First Dogmatic Constitution on the Church of Christ, Chapter 4, ¶ 9 (1870).
While encyclicals like Evangelium Vitae are issued by the Pope in virtue of his office as shepherd and teacher of all Christians, the document does not contain any of the usual hallmarks by which an infallible pronouncement is recognized; there is appeal to John Paul II's supreme apostolic authority (usually done by an explicit reference and mention of the authority of Blessed Peter and, sometimes, also the Apostle Paul); no use of traditional formulae such as "we declare, define and pronounce" (another feature of ex cathedra pronouncements such as Ineffabilis Deus); nor does it warn the faithful that disobedience or dissent is tantamount to a repudiation of the Catholic faith.

There is a misconception among American Catholics, Justice Scalia apparently being one of them, to the effect that only ex cathedra pronouncements require the religious submission of the Catholic faithful. This is false. The First Vatican Council explained that, in addition to the absolute moral certainty which the faithful must give to dogmatic pronouncements made with the charism of infallibility (ex cathedra), the authority of the Roman Pontiff to bind Catholic consciences extends to matters which are not taught ex cathedra but which are, nonetheless, taught by him. Again, the First Vatican Council:
Wherefore we teach and declare that, by divine ordinance, the Roman Church possesses a pre-eminence of ordinary power over every other Church, and that this jurisdictional power of the Roman Pontiff is both episcopal and immediate. Both clergy and faithful, of whatever rite and dignity, both singly and collectively, are bound to submit to this power by the duty of hierarchical subordination and true obedience, and this not only in matters concerning faith and morals, but also in those which regard the discipline and government of the Church throughout the world. First Dogmatic Constitution on the Church of Christ, Chapter 3, ¶ 2 (1870).
Thus, a Catholic layman who is addressed by a papal encyclical must, whether or not it contains an "ex cathedra" definition of dogma, recognize that the document is issued by the immediate jurisdictional power of the Roman Pontiff and that he is bound to submit to it whether it discusses matters of faith and morals or matters of lesser import. Catholics for a Free Choice make the same mistake as Justice Scalia when they (rightly) argue that Humanae Vitae doesn't qualify as an "ex cathedra statement" and then (wrongly) conclude that the encyclical can therefore be ignored by Catholics whose respectful and thoughtful consideration leaves them with a favorable private opinion about the morality of contraception or abortion.

The authority of the Roman Pontiff is granted from eternity (Matthew 16:18) and it has never changed. So in Humani Generis, Pope Pius XII explained the Catholic understanding of the authority of the ordinary (i.e., "non-ex cathedra") magisterium:
Nor must it be thought that what is expounded in Encyclical Letters does not of itself demand consent, since in writing such Letters the Popes do not exercise the supreme power of their Teaching Authority. For these matters are taught with the ordinary teaching authority, of which it is true to say: "He who hears you, hears me"; [Luke 10:16] and generally what is expounded and inculcated in Encyclical Letters already for other reasons appertains to Catholic doctrine. But if the Supreme Pontiffs in their official documents purposely pass judgment on a matter up to that time under dispute, it is obvious that that matter, according to the mind and will of the Pontiffs, cannot be any longer considered a question open to discussion among theologians. Humani Generis, ¶ 20 (1950)
Lumen Gentium, the Dogmatic Constitution of the Church issued by the Second Vatican Council, repeated the teaching:
Bishops, teaching in communion with the Roman Pontiff, are to be respected by all as witnesses to divine and Catholic truth. In matters of faith and morals, the bishops speak in the name of Christ and the faithful are to accept their teaching and adhere to it with a religious assent. This religious submission of mind and will must be shown in a special way to the authentic magisterium of the Roman Pontiff, even when he is not speaking ex cathedra; that is, it must be shown in such a way that his supreme magisterium is acknowledged with reverence, the judgments made by him are sincerely adhered to, according to his manifest mind and will. His mind and will in the matter may be known either from the character of the documents, from his frequent repetition of the same doctrine, or from his manner of speaking. Lumen Gentium, ¶ 25 (1964).
Again, even though the Pope does not speak ex cathedra the Catholic faithful (including Justice Scalia) must sincerely adhere to the Pontiff's judgments. Not just "respect," not just "listen to," but "sincerely adhere." This is more than Justice Scalia is willing to do -- he believes that papal statement like Evangelium Vitae which does not qualify as an ex cathedra pronouncement can be openly repudiated by any Catholic who believes his own "thoughtful and respectful consideration" to be a superior guide to the teaching of Christ. This is "private judgment" in its purest form. It is one of the worst features of fundamentalist Protestantism which is, with unsurprising irony, directly condemned by Scripture itself: "No prophecy of the scripture is made by private interpretation." 2 Peter 1:20 (DRV). Only the Church, acting in and through her Bishops, can rightly understand and guide the faithful according to God's word.

I do see, however, that I may have been too harsh on the "canonical experts" with whom Justice Scalia has consulted. In his First Things article, Justice Scalia was more vague on the nature of his consultation with these authorities. His comments at the Pew Forum indicate that he may only asked them whether Evangelium Vitae is an ex cathedra pronouncement, and received the accurate response that it isn't; it may not have been their opinions, but Scalia's own deviant understanding of Catholicism, which has produced his schismatic perspective on the authority of the Church with respect to the infliction of the death penalty.

For that matter, it's possible that he may never have had an adequate understanding of the Church's teaching authority. One of the most interesting things about his commentary on Evangelium Vitae is that it's so plagued by false and inaccurate statements that he appears not to have even read it. As I said on Fr. Sibley's blog, I don't undertake to say whether Justice Scalia is sinning, I only maintain that his views are schismatic. Justice Scalia's ignorance is, though a likely mitigating factor in an inquiry into the objective state of his soul (which I do not undertake), is nonetheless intolerable because (i) for a variety of reasons he has no earthly excuse for not knowing better, and (ii) he's publicly misleading the faithful and the non-Catholic world about the teaching of the Church, not only with respect to the death penalty, but with respect to a host of other matters connected to his disobedience. As I've indicated above, Scalia's warped theory about the magisterium is not limitable to the death penalty -- it justifies disobedience to, and disavowal of, any teaching of the Church so long as a plausible argument can be made that the teaching we dislike isn't "ex cathedra." If the Church is to rebuke Catholics who take this approach to Humanae Vitae, the Church must rebuke Catholics who take this approach to any other magisterial teaching.

Now back to Lent, and David may have the last word. OWWWW! . . . . .

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