In late January, the Supreme Court granted review in Glossip v. Gross, a case involving a constitutional challenge to a drug protocol used in the imposition of capital punishment by lethal injection. Under current practice, lethal injection works by way of three drugs: the first sedates the person to be executed, the second paralyzes him, and the third stops his heart. At issue in the Glossip case is whether the sedative—Midazolam—effectively puts the prisoner into a state of unconsciousness in which he will be unaware of the rest of the execution. The state of Oklahoma claims that Midazolam works if given in a big enough dose, but some recent executions, during which prisoners showed signs of distress, call this claim into question. The court will thus have to decide whether the procedure violates the Eighth Amendment’s prohibition on “cruel and unusual punishments.”
Archbishop Thomas Wenski of Miami and Bishop Seán O’Malley of Boston issued statements cheering the court’s decision to hear the case. Their interventions cut more broadly than the issues raised by the case at hand, passing judgment on capital punishment itself. While “welcom[ing] the Court’s decision to review this cruel practice,” Archbishop Wenski held that “the use of the death penalty devalues human life and diminishes respect for human dignity. We bishops continue to say, we cannot teach killing is wrong by killing.” Said Cardinal O’Malley, “We pray that the Court’s review of these protocols will lead to the recognition that institutionalized practices of violence against any person erode reverence for the sanctity of every human life. Capital punishment must end.”
The goal is ambitious. Wenski and O’Malley evidently want the Supreme Court to extend the constitutional challenge to the drug protocol to capital punishment itself. This is a problem, and not only because the bishops give no legal grounds for their opinions. They ask judges to expand their authority beyond its proper limits. Indeed, if the bishops have their way, they will encourage judges to bypass the legislative process. It is certainly ironic for Catholic leaders to call for judicial legislation while resisting the same move that led to a “right” to abortion. And not just ironic, but harmful to the common good because judicial legislation undermines the rule of law.
Capital punishment does not violate the Constitution. On the contrary, its use is explicitly contemplated by the Constitution. Both the Fifth and Fourteenth Amendments provide that a person may not “be deprived of life, liberty, or property without due process of law.” Obviously, this means that individuals may be deprived of life pursuant to due process of law. Similarly, the language of the Fifth Amendment elsewhere provides that no one “shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger.” This language, again, clearly provides that capital punishment may be imposed under the proper conditions.
The Supreme Court has cited the Eighth Amendment’s cruel and unusual punishments clause to narrow the use of the death penalty in America, holding that it may not apply to certain crimes—such as rape—or to certain offenders, such as minors and the mentally disabled. Nevertheless, the court has never suggested that it has the authority to override the Constitution by invalidating capital punishment in all circumstances. In encouraging the court to do so, Cardinal O’Malley and Archbishop Wenski urge the justices to rule contrary to the obvious meaning of the Constitution.
That’s the legal flaw in the bishops’ position. The civic problem is worse. In the American system, the source of judicial power is Article III of the Constitution, which authorizes the courts to resolve “all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority.” Article VI provides that the “Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.” According to America’s fundamental law, then, American judges decide cases on principles found in these legal sources, and not on extrinsic moral or religious principles such as the sanctity of human life.
Of course, the court does retain the power of judicial review, by which it can invalidate statutes. But that power doesn’t grant the justices authority to make moral judgments about laws that come under review. The justices of the Supreme Court have promised, in the most solemn manner, to be guided by the Constitution and the laws, not by general beliefs about right and wrong. The specific language of the judicial oath prescribed by Congress binds judges to “faithfully and impartially discharge and perform” the “duties” of their office “under the Constitution and laws of the United States.” The official form of the oath ends with the words, “So help me God.” Justices of the Supreme Court have sworn to execute their office in conformity to the Constitution, and have invoked God as witness to their sincerity.
All of this should give American Catholics pause, whatever they may think about the death penalty. America is not a Catholic regime, but American Catholics—and the Church itself—have never supposed that this frees Catholics from obligations to respect and obey America’s fundamental law. From the standpoint of Catholic morality, the American regime as it is currently configured harbors some serious evils, such as abortion. Yet it has never been the position of the American Catholic bishops, or of any higher Catholic authority, that we should seek to correct these evils by violating otherwise valid laws or by calling on officers of the government to exercise powers that they do not legitimately possess.
The protection of a Catholic understanding of the common good depends on judicial fidelity to the Constitution as written and as traditionally understood. Chief among the challenges that American Catholics face are restoring laws protecting the lives of unborn children, defending laws recognizing marriage as a union between a man and a woman, and securing the freedom of Catholic institutions and individuals to live according to Catholic moral teaching. In each of these cases, the protection of principles and interests that Catholics hold dear depends on the Supreme Court’s respect for the plain meaning of the Constitution and laws as written. There is nothing in the text of the Constitution to require a right to abortion or to same-sex marriage. On the other hand, the First Amendment requires the government to respect the “free exercise” of religion. Catholics cannot ask the court to respect the meaning of the Constitution in order to vindicate these causes while also asking it to disregard that meaning to advance other causes.
There has been a marked trend in American politics over the last few decades, driven primarily by the American left, to resolve more and more issues in the courts, especially when the left believes it cannot prevail through the political process. Abortion and the movement for same-sex marriage are the most obvious examples. This trend should be resisted, not encouraged. We should not be seduced into following it, even for a good cause. It replaces the ordinary products of self-government—prudent compromises—with the typical outcomes of court battles over constitutional rights, real or invented: total victory for one side and total defeat for the other. These all-or-nothing legal battles undermine civic friendship between Americans of different points of view.
Instead of urging judges to reinterpret existing laws in tendentious ways, Catholic leaders should pursue strategies that engage rather than do an end run around the democratic process. The Constitution permits but does not require capital punishment. It creates a republican form of government that is free to disclaim the use of the death penalty if this is what the people wish to do. Catholic opponents of capital punishment may respect the Constitution while working toward passage of a constitutional amendment prohibiting capital punishment, or by working to repeal the state and federal laws that impose it. Since nineteen states already reject the use of capital punishment, this political option is by no means unrealistic.
Carson Holloway is a visiting fellow in American political thought in the B. Kenneth Simon Center for Principles and Politics at the Heritage Foundation.