I wouldn't put it that way, but Alan Dershowitz, the Harvard Law professor, makes an interesting point about the Justice's comments on Monday, and how they square with Catholic teaching and Christian morality. Here's Dershowitz on The Daily Beast:
I never thought I would live to see the day when a justice of the Supreme Court would publish the following words:
“This court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged ‘actual innocence’ is constitutionally cognizable.”
Yet these words appeared in a dissenting opinion issued by Justices Antonin Scalia and Clarence Thomas on Monday. Let us be clear precisely what this means. If a defendant were convicted, after a constitutionally unflawed trial, of murdering his wife, and then came to the Supreme Court with his very much alive wife at his side, and sought a new trial based on newly discovered evidence (namely that his wife was alive), these two justices would tell him, in effect: “Look, your wife may be alive as a matter of fact, but as a matter of constitutional law, she’s dead, and as for you, Mr. Innocent Defendant, you’re dead, too, since there is no constitutional right not to be executed merely because you’re innocent.”
It would be shocking enough for any justice of the Supreme Court to issue such a truly outrageous opinion, but it is particularly indefensible for Justices Scalia and Thomas, both of whom claim to be practicing Catholics, bound by the teaching of their church, to do moral justice. Justice Scalia has famously written, in the May 2002 issue of the conservative journal First Things, that if the Constitution compelled him to do something that was absolutely prohibited by mandatory Catholic rules, he would have no choice but to resign from the Supreme Court.
...
But whatever the view of the church is on executing the guilty, surely it is among the worst sins, under Catholic teaching, to kill an innocent human being intentionally. Yet that is precisely what Scalia would authorize under his skewed view of the United States Constitution. How could he possibly consider that not immoral under Catholic teachings? If it is immoral to kill an innocent fetus, how could it not be immoral to execute an innocent person?
Read the rest here. More Cafeteria Catholicism? You have to admit that, no matter what the legal books say, executing innocent people, at the very least, goes against the Gospel.
And I should add that his statement in the dissent about what the Court has not held doesn't mean that's what the Court, or Scalia personally, would hold.
On the case before him, I suspect he expects prosecutors to do the right thing rather than constitutionalizing what should be prosecutorial common sense. Sadly, prosecutors would rather have the win than do the right thing, particularly if the convicted is black and the prosecutor is in the South. Again, under the 14th Amendment, the federal courts have a role in doing justice where such biases, however unstated, are an essential feature of the criminal justice system.
And live on a fat pension for life... what courage!, what sacrifice.!.. for 'truth' and 'law'...'my country right or wrong' ..But would he prayerfully attend the dead guy's funeral?... nah..
"If it is immoral to kill an innocent fetus, how could it not be immoral to execute an innocent person?"
This line is by Alan Dershowitz, not Fr. Martin.
I also find it interesting that he did not link the opinion in his article on the Daily Beast.
I will refrain from commenting until I an read the opinion.
I will say as a lawyer, if there is proof or evidence of innocence that was not presented at time of trial, there are procedural rules to get a new trial. Thus it is not a ''constitutional'' issue, per se. It is a rule of criminal procedure which allows for a new trial or for the judge to make a determination based upon the weight of the evidence. Now the failure to grant a new trial based upon the evidence could be a constitutional question depending upon what the court rules at the lower level, but frankly the scenario painted by Dershowitz is so patently absurd as to call into question the reason for his post.
I also would be willing to bet that his point in this little excerpt is that the proper venue for preventing this immoral act from occurring is not in a court reviewing on constitutional grounds. Scalia has a lengthy history of challenging the proper scope of the use of judicial review and its gradual displacement of the other two branches of government. I would guess that he would argue that the proper approach to this problem is to seek relief from the Executive (probably a governor). That can be followed by a court's vacating of the conviction under normal judicial rules (not on constitutional grounds, but on the authority of statutes passed by the legislature). This happens all the time. The public would be up in arms in the scenario of the "murder victim" being seen alive and well, and the public can bring its pressure to bear on the elected branches of government to correct this wrong. The mistake is in elevating every important problem to a constitutional one, which takes the question out of the sphere of democratic control. If you really want to do that, pass a constitutional amendment making it clear that the public wants this to happen. Otherwise, stop passing the buck to the least democratic branch.
http://bench.nationalreview.com/post/?q=ZTFjN2IxNjI1YWNjM2NlZjkyMmM4OWNkZGM0Yjc0ZDQ=
I am disappointed that you have posted a link to this piece by Prof. Dershowitz. Should not basic Christian charity cause one to stop and ponder the possible alternative exlanations before highlighting and repeating an accusation that another person is acting immorally, unfaithfully or is out of communion with the Church? A few moments of serious reflection should have made it clear that Professor Dershowitz's confused and ultimately baseless swipe at Justice Scalia's moral rectitude and fidelity to Church teaching is below the belt, and not worthy of being uncritically amplified in a prominent Catholic journal like America.
As Professor Dershowitz should well know, neither Justice Scalia nor any of his colleagues were placed on the Supreme Court by their fellow citizens to tell us what is or is not moral in any particular case or circumstance. Rather, their job is to apply the Constitution and laws to the facts in each case. If Justice Scalia (or Justice Thomas or any other Justice) concludes the Constitution does not bar the execution of an innocent man lawfully convicted and sentenced to death, then it is the Justice's moral duty to say so, even if he believes it would be immoral for the State to actually execute such a person. It is not the job of Supreme Court justices to twist the meaning of the law, dishonestly, to hold every immoral act unconstitutional. In short, in the situation posited, Justice Scalia would have no power to stop the execution, except by illegitimately usurping an authority not conferred on him by the law. To do so would be to usurp the sovereignty and free will of the People and to abuse the power entrusted to the Justices - it would, essentially, make the Justices dictators, even if only benevolent ones.
Surely being a faithful and moral Catholic does not require one to abuse one's position and authority to illegitimately impose his will on his fellow citizens.