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Interpreting God's Justice
Laurence Tribe v. Sean Wilentz on Justice Antonin Scalia
In this special edition of JURIST's Forum, Harvard constitutional scholar Laurence Tribe debates Princeton historian Sean Wilentz in an exchange of letters discussing the death penalty, democracy, religion and the Constitution.

"The death penalty is undoubt-
edly wrong unless one accords to the state a scope of moral action that goes beyond what is permitted to the individual."

          - Justice Antonin Scalia
The Tribe-Wilentz debate stems from an address on the death penalty that US Supreme Court Justice Antonin Scalia delivered at the University of Chicago Divinity School in January 2002 and later adapted for print, under the title God's Justice and Ours, in the May 2002 issue of First Things: The Journal of Religion and Public Life.

Justice Scalia revealed in these remarks that while sitting on a court that reviewed and affirmed capital convictions made him part of the state's "machinery of death" , the constitutionalty of the death penalty was not "a difficult, soul-wrenching question" for him. Rather, it was settled by the historical fact that the death penalty was permitted when the Eighth Amendment to the United States Constitution - prohibiting cruel and unusual punishment - was adopted . The morality of the death penalty was similarly settled in his mind, he explained, by his willingness to accord to the state a scope of moral action "beyond what is permitted to the individual". Modern aversion to the death penalty was an erroneous but predictable reaction to modern, democratic self-government that had ostensibly reduced the divine right of kings - the ancient expression of the notion that government derives its moral authority and legitimacy from God - to the sway of "the fools and rogues...whom we ourselves elect to do our own will" . The modern view that the death penalty is immoral had, he continued, even infected the teachings of the Catholic Church, according to which, now, death can only be imposed to protect rather than avenge. Happily, the latest version of the Catholic catechism did not purport to be binding, and so Justice Scalia concluded that, unlike other judges who might have divided moral and legal loyalties on the death penalty, he did not face any fundamental conflict between his religious and constitutional obligations and therefore was under no ethical compulsion to resign .

Justice Scalia's reflections caught the attention of a number of scholars and commentators . In a New York Times op-ed published in July 2002, Sean Wilentz called Justice Scalia's expressed worldview "a chilling vision of religious authority in America." "Justice Scalia's remarks", wrote Wilentz, "show bitterness against democracy, strong dislike for the Constitution's approach to religion and eager advocacy for the submission of the individual to the state....One senses that Mr. Scalia's true priority is to get secular humanists off the federal bench."

Wilentz's commentary in turn elicited sharp criticism from conservatives. But of course that was to be expected. Much more surprising was criticism from liberal quarters, which was precisely what Laurence Tribe offered in early August 2002. Prompted to rebut Wilentz directly and comprehensively in a letter, he came to Justice Scalia's defence...

August 10, 2002

Professor Sean Wilentz
Princeton University
Princeton, N.J.

Dear Sean:

As someone who often disagrees with Justice Antonin Scalia both on substantive constitutional matters - like his conclusion that capital punishment, about whose constitutionality I have no firm view, is immune from challenge under the Eighth Amendment’s cruel and unusual punishment clause because it was “clearly permitted when the Eighth Amendment was adopted,” Antonin Scalia, God’s Justice and Ours*, First Things 17 (May 2002) (hereinafter, “FT”) - and on matters of interpretive methodology - as with his simplistic equation of the “living Constitution” school with the “the-Constitution-means-what-we-right-thinking-(or, rather, left-thinking)-people-think-it-ought-to-mean” school - I was initially more intrigued than put off by the account in your op-ed, From Justice Scalia, a Chilling Vision of Religion’s Authority in America, in The New York Times this July 8....

* All hyperlinks to references have been added by the editor.


Laurence Tribe is Ralph S. Tyler, Jr. Professor of Constitutional Law at Harvard Law School, and has argued many cases before the United States Supreme Court.

Sean Wilentz is the Dayton-Stockton Professor of History and the Director of the Program in American History at Princeton University; he has written serveral prize-winning books on 19th century America.