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June 2008

From Judgment to Mercy

From Judgment to Mercy

Romans 2:1-11; 14:7-13

by the Rev. Dr. E. Scott Jones

Cathedral of Hope – Oklahoma City

27 June 2008


    If you are going to be judged, then you want God to do it.


    Because God created you. Because God knows you more intimately than anyone else. Because God really knows your heart and your deepest self. Because God's character is filled with justice, compassion, and mercy.

    And you don't want to be judged by anyone else.

    Because they haven't created you. They do not know you intimately. They do not know your true heart, your deepest self. And you are fully aware that they can be motivated by self-interest, hypocrisy, anger, or any array of emotions.

    Paul knows us all too well. Especially pious, religious people. After all, he was one. And he was one of the most judgmental.

    God calls the church into solidarity with God's self. Which means we are supposed to be more like God. God has chosen to act mercifully toward people. Well, so should we.

    Reflecting on all these topics this week, I remembered a story. It's about Ruby Turpin.

    Our story is set in rural Georgia sometime before desegregation. Ruby is a good Southern woman. She works hard, goes to church, lives a well-ordered life, and dominates her husband Claud.

    Claud was kicked in the leg by a cow, so they have to go to town to see a physician. When Ruby and Claud enter the doctor's office, the waiting room is tiny. Ruby is annoyed by this. With all the money that physician's make, surely he could afford a larger waiting room. Ruby is a big woman, and she fills the space.

    There is only one empty seat, which Ruby gives to Claud. There is a couch, but a young child is sitting there taking up all the space. He is dirty and his nose is running. He does not move to make room for Ruby, which annoys her.

    While standing and waiting for a seat to open up, Ruby surveys the people in the room. There is one well-dressed woman whom she labels as the pleasant lady. There is also the boy, his mother, and grandmother. Ruby identifies them as white trash. Ruby has no regard for white trash. There is also a young woman, about 19 or 20, who appears to be the daughter of the pleasant lady. This young woman is ugly. She is fat and her face is covered with acne. Ruby pities her. The young woman is reading a large book entitled Human Development. There are a couple of other people, not relevant to our story.

    Eventually a seat opens up and Ruby takes it. While listening to the gospel music on the radio and occasionally entering into polite small talk with the other people, Ruby begins to think about herself and other people.

    We, the readers, learn the following about Ruby:

Sometimes at night when she couldn't sleep, Mrs. Turpin would occupy herself with the question of who she would have chosen to be if she couldn't have been herself. If Jesus had said to her before he made her. "There's only two places available for you. You can either be black or white-trash," what would she have said? "Please, Jesus, please," she would have said, "just let me wait until there's another place available," and he would have said, "No, you have to go right now and I have only those two places so make up your mind." She would have wiggled and squirmed and begged and pleaded but it would have been no use and finally she would have said, "All right, make me colored then – but that don't mean a trashy one." And he would have made her a neat clean respectable Negro woman, herself but black.

And we learn this about Mrs. Ruby Turpin:

Sometimes Mrs. Turpin occupied herself at night naming the classes of people. On the bottom of the heap were most colored people, not the kind she would have been if she had been one, but most of them; then next to them – not above, just away from – were the white-trash; then above them were the home-owners, and above them the home-and-land owners, to which she and Claud belonged. Above she and Claud were people with a lot of money and much bigger houses and much more land. But here the complexity of it would begin to bear in on her, for some of the people with a lot of money were common and ought to be below she and Claud and some of the people who had good blood had lost their money and had to rent and then there were colored people who owned their homes and land as well. There was a colored dentist in town who had two red Lincolns and a swimming pool and a farm with registered . . . cattle on it. Usually by the time she had fallen asleep all the classes of people were moiling and roiling around in her head.

    Now, I mentioned that Mrs. Turpin enters into polite conversation with the other folk present in the waiting room. For instance, the pleasant lady asks about the Turpin's farm and if they have cotton.

"We don't have much cotton . . . . If you want to make it farming now, you have to have a little of everything. We got a couple of acres of cotton and a few hogs and chickens and just enough [cattle] that Claud can look after them himself."

    "One thang I don't want," the white-trash woman said, wiping her mouth with the back of her hand. "Hogs. Nasty stinking things, a-gruntin and a-rootin all over the place."

    Mrs. Turpin gave her the merest edge of her attention. "Our hogs are not dirty and they don't stink," she said. "They're cleaner than some children I've seen. Their feet never touch the ground. We have a pig-parlor – that were you raise them on concrete," she explained to the pleasant lady, "and Claud scoots them down with the hose every afternoon and washes off the floor." Cleaner by far than that child right there, she thought. Poor nasty little thing. . . .

    "When you got something," she said, "you got to look after it."

    Now throughout these conversations, the young ugly woman continues to make faces at Mrs. Turpin. She will look up from her reading and scowl at her. Sometimes, when Ruby is thinking about the other people, after her thoughts the girl looks at her. It is as if she knows Ruby. In fact, Ruby feels as if the girl "was looking at her as if she had known and disliked her all her life – all of Mrs. Turpin's life, it seemed too, not just all the girl's life. Why, girl, I don't even know you, Mrs. Turpin" thought.

    One of the gospel songs on the radio gets Mrs. Turpin to thinking about her goodness and her blessings:

To help anybody out that needed it was her philosophy of life. She never spared herself when she found somebody in need, whether they were white or black, trash or decent. And of all she had to be thankful for, she was most thankful that this was so. If Jesus had said, "You can be high society and have all the money you want and be thin and svelte-like, but you can't be a good woman with it," she would have had to say, "Well don't make me that then. Make me a good woman and it don't matter what else, how fat or how ugly or how poor!" Her heart rose. He had not made her black or white-trash or ugly! He had made her herself and given her a little of everything. Jesus, thank you! she said. Thank you thank you thank you! Whenever she counted her blessings she felt as buoyant as if she weighed one hundred and twenty-five pounds instead of one hundred and eighty.

As she was thinking these thoughts,

All at once the ugly girl . . . [fixed her eyes] like two drills on Mrs. Turpin. This time there was no mistaking that there was something urgent behind them.

Girl, Mrs. Turpin exclaimed silently, I haven't done a thing to you!

    Mrs. Turpin decides that she will not be intimidated, so she asks the girl if she is in college. The girl doesn't answer. The girls mother then says, "The lady asked you a question, Mary Grace."

    Mary Grace responds, "I have ears."

    The pleasant lady then answers for her daughter. Mary Grace goes to Wellesley. She's a real book worm and even during her summers she reads and reads. Her mother wishes that she would get out more and enjoy herself.

    The pleasant lady goes on,

"I think people with bad dispositions are more to be pitied than anyone else on earth," . . . .

"I thank the Lord he has blessed me with a good one," Mrs. Turpin said. "The day has never dawned that I couldn't find something to laugh at." . . .

"If it's one thing I am," Mrs. Turpin said with feeling, "it's grateful. When I think who all I could have been besides myself and what all I got, a little of everything, and a good disposition besides, I just feel like shouting. 'Thank you, Jesus, for making everything the way it is!' I could have been different!" . . . At the thought of this, she was flooded with gratitude and a terrible pang of joy ran through her. "Oh thank you, Jesus, Jesus, thank you!" she cried aloud.


The book struck her directly over her left eye. It struck almost at the same instant that she realized the girl was about to hurl it. Before she could utter a sound, the raw face came crashing across the table toward her, howling. The girl's fingers sank like clamps into the soft flesh of her neck. She heard the mother cry out and Claud shout, "Whoa!"

    Everything was chaos for a moment as the nurse and physician run in, Mary Grace is wrestled off of Mrs. Turpin and pinned down to the floor where the doctor gives her an injection. After Mrs. Turpin's head clears, she looks down at Mary Grace.

There was no doubt in her mind that the girl did know her, knew her in some intense and personal way, beyond time and place and condition. "What you got to say to me?" she asked hoarsely and held her breath, waiting, as for a revelation.

    The girl raised her head. Her gaze locked with Mrs. Turpin's. "Go back to hell where you came from, you old wart hog," she whispered. Her voice was low but clear. Her eyes burned for moment as if she saw with pleasure that her message had struck its target.

    Mrs. Turpin sank back in her chair.

    An ambulance is called, and Mary Grace is taken away. Ruby and Claud finish his appointment and return home. They are so tired they lie down for awhile. While resting she begins to think about what the girl has said,

The image of a razor-backed hog with warts on its face and horns coming out behind its ears snorted into her head. She moaned a low quiet moan.

    "I am not," she said tearfully, "a wart hog. From hell." But the denial had no force. The girl's eyes and her words, even the tone of her voice, low but clear, directed only to her, brooked no repudiation. She had been singled out for the message, though there was trash in the room to whom it might justly have been applied. The full force of this fact struck her only now. There was a woman there who was neglecting her own child but she had been overlooked. The message had been given to Ruby Turpin, a respectable, hard-working, church-going woman. The tears dried. Her eyes began to burn instead with wrath.

    Eventually Ruby gets up and goes about her business. Then she heads down to the pig parlor to wash down the pigs for the evening. Standing there, with the hose pointed on the hogs, she enters into conversation with God. "What do you send me a message like that for?" she asks. She demands to know why. She is a good woman, a hard-working woman. She isn't trash. She tells God that if he likes trash better, then he should go get himself some trash then. Eventually she is so angry that she's yelling at God, "Go on, call me a hog! Call me a hog again. From hell. Call me a wart hog from hell. Put that bottom rail on top. There'll still be a top and a bottom! . . . Who do you think you are?"

    Then Ruby stares for a long time at the hogs, as the sun is setting behind the hillside in front of her. There is a strip of purple left in the sky by the setting sun. She imagines it as a bridge leading to heaven. Ruby Turpin has a vision:

She saw the streak as a vast swinging bridge extending upward from the earth through a field of living fire. Upon it a vast horde of souls were rumbling toward heaven. There were whole companies of white-trash, clean for the first time in their lives, and bands of blacks in white robes, and battalions of freaks and lunatics shouting and clapping and leaping like frogs. And bringing up the end of the procession was a tribe of people whom she recognized at once as those who, like herself and Claud, had always had a little of everything and the God-given wit to use it right. She leaned forward to observe them closer. They were marching behind the others with great dignity, accountable as they had always been for good order and common sense and respectable behavior. They alone were on key. Yet she could see by their shocked and altered faces that even their virtues were being burned away. She lowered her hands and gripped the rail of the hog pen, her eyes small but fixed unblinkingly on what lay ahead. In a moment the vision faded but she remained where she was, immobile.

    At length she got down and turned off the faucet and made her slow way on the darkening path to the house. In the woods around her the invisible cricket choruses had struck up, but what she heard were the voices of the souls climbing upward into the starry field and shouting hallelujah.

[from "Revelation" by Flannery O'Connor]

A Wonderful Weekend

Michael and I had a wondefully summery weekend. 

You see, I have a philosophy that summer should not be wasted.  One has a short amount of time to get lots of swimming and other summer activities in, and one should enjoy summer.  It should be a lazier, more care-free, fun time of year.  I guess I was on the academic calendar so long, you see.

Friday we headed to Stillwater to see Brandi, who was visiting from Nebraska before moving to Massachusettes.  Together we went to see Wall-E, which is a splendid film.  Beautiful is the proper word for describing at least the first half, which is really an art film.  The second half, which is more children's film, is still enjoyable.  Some of these scenes will become classics -- like dancing around the outside of the space craft.  I highly recommend it: 5 popcorn kernels, 4 film reels.

Saturday Charlie Bates and Charles Martin had organized a reunion of sorts of old college friends at Turner Falls, with some of them driving up from Texas.  I hadn't been to Turner Falls since I was in high school.  But we had such a fun time picnicing, swimming, lying lazily in the falls and cascades, discussing pop culture lists, eating fried pies and watermelon, etc.  Then driving home, Michael, Hallie, Danny, and I marvelled at the most amazing skyscapes -- it was like driving through an art gallery.  No better summer day could have been imagined.

Sunday morning found me working, though we took a break in the afternoon to go see The Happening with Tarae.  What a crappy movie.  One of the worst I've ever seen.  What has happened to the promise of Shyamalan?  I really think the entire film was a dark comedy, as I found myself laughing or thinking about laughing quite often.  There were some sequences that hinted at Shyamalan's previous artistry of composition and style, but these could not save this mess of a movie.  1.5 popcorn kernels, .5 film reels.

After the film we hurried to the ER, as my uncle Glenn was admitted.  I then had to run off to church a little harried, but it was a nice service.  The sermon was primarily composed of the Flannery O'Connor short story "Revelation."  It is such a delightful story that even during my evening walk I kept thinking about it, and I'd been working with the story for days now.

When I finally got home Sunday evening I ended the weekend by reading -- a Vladimir Nabokov short story, an article on Buckminster Fuller, a essay about the Iliad, a chapter on Frank Phillips, some Byron, and a little Isabel Allende before falling asleep.

The three days of the weekend combined with the delightful intellectual stimulation of the three days before has made for a nice little run.  Happy Summer!

Second amendment continued

5)  One might think that the majority's claim that there is a right to bear arms prior to enumeration (do they think it is a natural right?) is a radical enough claim, but they go further.  When you read the entire decision it seems that the hold the following to be a right: "The right to bear arms for self-defense, in the home, such arms being the most popular currently used for self-defense and such arms being immediately available."  That's a longly worded right.  Not only do they claim this as a right of all Americans, it appears that they believe it to be a right existing prior to enumeration, a right that even the Constitution could not have trumped.  Do they consider it a natural right? 

Let's take the various aspects of this "right" separately.

A)  First, is it a right existing prior to enumeration?  This can have a variety of meanings: 1) it was understood to be a right of Englishmen (may or may not have been written down) prior to the framing of the Constitution; 2) it is a right that all members of a civil society are understood to possess, philosophically; 3) it is a right existing in the state of nature prior to the formation of the social contract and is not surrendered at the time of the social contract.

It is not clear which status the majority's "right" possesses. 

Now, the right to self defense is a natural right existing prior to the formation of the social contract.  However, some of the rights to defend your own interest are surrendered at the formation of the social contract -- individuals enter into an agreement of collective security, with the state supplying military and police power.  So, the natural right to self-defense is limited in the civil society.  The minority does raise this issue.

The right to defend your own home is generally understood to continue into the civil society (with some limitations).  And it is logically implied that won must be capable of actually defending oneself.  It is not clear to me that any particular sort of weapon is protected by the natural right, but just the overall right to defend yourself.

Yet, it seems to me that it is left of the people acting corporately to decide what is or is not acceptable means of defending oneself in the home.  That also seems to be implied by the ideas of civil society and social contract (of the democratic variety).  The question would then become does this particular law go too far. 

B)  For the majority much hinges on what I am calling the "immediately available" feature of the "right."  Any sort of trigger lock or requirement to isolate bullets from weapon seems to violate this right, according to the majority.

In opposition, Justice Breyer sites laws from the founding period which required that gunpowder be isolated, because gun powder posed a fire hazard, thus it was a threat to the public order and safety.

The decisions argue whether the existence of these laws can be used to discern the intentions of the Framers and over the specific implications of the laws, even if they can be used to establish any sort of precedence for understanding the case at hand.

I don't find either Breyer or Scalia completely persuasive on this point.  What I think Breyer does establish is that from the founding it has been understood that the self-defense right can be regulated by the people when it comes to matters of public order and safety.  I am with Scalia that one should not give these particular laws weight in interpreting the Constitution.

Given what Breyer does establish, in my opinion, the question in this case, becomes does the DC statute limit the self-defense right in a justifiable manner because of the responsible of DC to provide for the public order and safety.  The minority believe it does.  The majority never responds adequately to this point.

Again, no standard for adjudicating what is justifiable limitation and what is not justifiable is presented by the majority.  I am personally unclear what the standard should be.

C)  A final component of the majority's "right" is that we have a right to the most popular weapon currently available for self-defense in the home. 

The write convincingly about why handguns are currently the most popular form of home self-defense.  Yet, their standard (they do provide one on this point) seems seriously flawed.

First off, the argument centers on the interpretation of the only Supreme Court precedents on the second amendment.  One of those is a case called Miller in which the government limited the right of Americans to own guns often used for criminal purposes.  The particular weapon at issue in the case was a sawed off shotgun.  In Miller the Court ruled unanimously that it was within the legitimate scope of government power to ban the weapon.

In this case, DC v Heller, Scalia and Stevens argue strongly on the interpretation of Miller.  I didn't go back and read that case.  But just based on what they have to say about it in these decisions, I am more persuaded by Justice Stevens' interpretation of the case.  The majority seems to go through so many conceptual and rhetorical contortions to get Miller to support their argument, that it is bewildering.  It seems clear that the existing precedent of the Court (a unanimous decision) is that the type of weapon can be banned if it is routinely used for criminal purposes.  Miller would seem to support the constitutionality of the DC handgun ban.  Stevens is almost apoplectic at the flagrant disregard of the the majority in overturning seventy years of jurisprudence based upon the precedent and standard of Miller (again, a unanimous verdict).  [Note: I am not convinced by Stevens' argument that only the military use of weapons is supported by the second amendment and the legal tradition following from it; this is part of his interpretation in the Miller case which is unconvincing.]

But the popularity argument has a more fatal flaw -- it simply is absurd.  Justice Breyer exposes the absurdities:

Nor is it at all clear to me how the majority decides which loaded “arms” a homeowner may keep. The majority says that that Amendment protects those weapons “typically possessed by law-abiding citizens for lawful purposes.”  This definition conveniently excludes machineguns, but permits handguns, which the majority describes as “the most popular weapon chosen by Americans for self-defense in the home.” But what sense does this approach make? According to the majority’s reasoning, if Congress and the States lift restrictions on the possession and use of machineguns, and people buy machineguns to protect their homes, the Court will have to reverse course and find that the Second Amendment does, in fact, protect the individual self-defense-related right to possess a machinegun.  On the majority’s reasoning, if tomorrow someone invents a particularly useful, highly dangerous selfdefense weapon, Congress and the States had better ban it immediately, for once it becomes popular Congress will no longer possess the constitutional authority to do so. In essence, the majority determines what regulations are permissible by looking to see what existing regulations permit. There is no basis for believing that the Framers intended such circular reasoning.

Thus, this one aspect of the majority's "right" is absurd and cannot be understood to be a right either civil or natural.  Yet, this is now the lone standard existing as law within American jurisprudence.  Shocking!

6)  On a side note, Justice Stevens convincingly argues that one aspect of the original intention of the second amendment is that owning a weapon and being trained in the use of that weapon for the defense of the society was actually a civic duty and understood to be part of the responsibilites of good citizenship and essential for maintaining a citizen republic. 

This aspect of our Founders' intention is said to have waned because of the development of the military and police forces (a standing army is actually forbidden by the U. S. Constitution, an issue which has never been adequately dealt with in my opinion). 

Just imagine if all of our citizens were still trained in things like: 1) the proper use of firearms and 2) how to work together to defend the civil society.  One aspect of this, of course, is that government would have to be cautious in what it did to people, because people would be trained to respond in a way to defend their own rights.  I think such training and citizen action extends far beyond firearms.  Just imagine if we too the spirit of the second amendment to mean that we should be trained in things like disaster response or how to work collectively to petition government. 

Rather than being a sidenote in discussions of the second amendment, I'd like to see this point explored further.

7)  Given all that has been said, what is my opinion of the case at hand -- the DC handgun ban?  I have a gut sense that the DC law went to far, but I find myself unable to decide what think because the decisions in the case provide no standard by which to adjudicate.  I am not persuaded by the entirety of any of their interpretations of the amendment or the history of interpretation.  Scalia, Stevens, and Breyer each seem convincing on some points and obtuse and overly partisan on others. 

Ultimately I think that the Court was irresponsible in this case.  Given the importance of the case and that it was for the first time in our history explicitly articulating rights and governments responsibilities and limitations when it comes to those rights, they needed to work harder at coming to a clearer understanding.  The majority's opinion is filled with holes and is an embarrassing precedent to now become the standard in American jurisprudence.  If they were not prepared to articulate a clear standard for legislatures and Courts to use in these matters, then they should not have ruled.  They should simply have let the lower Court ruling stand and said that they needed more time and work in order to provide the people with the sort of decision that we deserve.

The Second Amendment: DC v Heller

This is a fascinating case and decision, largely because the Supreme Court has little precedent on these issues and was, for the first time, clearly articulating its interpretation of some aspects of the second amendment.  You can find the decision here.

1)  I am convinced by Justice Stevens' argument in the dissent that the primary purpose of the second amendment was to deal with the issue of state militias and federal power.  I think he makes a convincing argument about the history of the amendment's formulation.

2)  That said, I am also persuaded by Justice Scalia's argument in the majority opinion that the second amendment does enumerate an individual right to bear arms and that such a right exists prior to it enumeration within the Constitution.

Justice Stevens' arguments to the contrary are not convincing, and I think he obtusely misses or misreads some of the historical data.

On a side note, the majority's admission that there are rights existing prior to enumeration in the Constitution which cannot be trumped even by the Constitution is a profound admission, in that the right to privacy is considered to be one of those rights and the right to privacy is the foundation for rulings on birth control, abortion, and gay rights.

3)  There is an interesting argument over linguistics, grammar, syntax, and semantics between Scalia and Stevens in regards to the phrase "keep and bear arms."  I find both of them to offer reasonable interpretations of the phrase.  That they offer competing interpretations means that the Constitution is itself unclear on this point and that the Court disagrees 5-4 on the interpretation of the phrase means there is a fundamental ambiguity that needs to be resolved.  How, I do not know.

4)  The entire Court admits that any individual right to bear arms is not absolute but can be limited by the government.  However, the majority provides no standard that courts and legislators can use to determine what limits they can impose.  Just Breyer takes them to task on this and warns that the lack of a standard will lead to judicial activism.  Breyer himself offers a standard.  Scalia believes Breyer's standard to be flawed, and it may well be, but at least he offers a standard.

5) . . . I have to go get ready.  Michael is home, and we are headed to Stillwater for the evening.  This post is not complete, sorry about that, but I will go ahead and post it and finish my analysis later.  Have a great Friday!

Ethics of Care: Upon further reflection, a correction

I am now not persuaded by some of my reasoning related to the care issues in the child rape/capital punishment case.

My argument is correct that an ethics of care is not the foundation of the American justice system and to make it so is beyond the scope of this case.  But that does not mean that considering the care issues is irrelevant when making a rational judgment in the case.  Claiming that the care issue were irrelevant was wrong, on my part.

In fact taking into account the care issues helps with my argument for the seriousness of these crimes.  The basic point of this whole discussion, in my view, is "Can child rape be equal to or worse than murder?"  I emphatically answer that question "yes" and believe the court's decision to be wrong in that it appears to claim that child rape cannot be equal to or worse than murder.

That said, could you claim that it can be equal to or worse than murder and still deserve a different sort of punishment because of the care issues?  Yes, you could.

However, I do not find that convicing for declaring the laws here in question to be constitutional.  I only find that convincing that the laws must be carefully applied (pun intended).

As I wrote before, consideration of the care issues involved should prompt the more general discussion about the American justice system and how we punish.  That conversation would lead to the abolition of the death penalty, I am convinced.

NOTE:  I have been reflecting on the second amendment case and am close to posting.  I hope to have something up this afternoon.  The rape/capital punishment case has occupied my thoughts and writing time.

Captial Punishment itself

In an attempt to clear up confusion about my philosophical views on capital punishment itself, I post the following.  Oh, and thank you for the intellectual debate.  Michael said yesterday I was happier than he'd seen me in a long time!

I posted my actual views on capital punishment some years ago.  They are themselves rather complicated.  

First, is it morally justified?
As a matter of philosophical ethics I believe it to be morally justifiable for a state to execute.  As a matter of Christian ethics, I do not.  The latter is a particular view, the former is the ground upon which a pluralistic society must find common ground for dialogue (see John Rawls' The Law of Peoples for a fuller explanation of that distinction). 
Second, can it be morally actualized?
My objection is that no actual criminal justice system can instatiate the ideal of justice -- any actual system is fallible. Because of inherent fallibility no actual system should include the death penalty, even if it is conceptually morally justifiable.
Third, is it constitutional?
This is the tricky one.  Lately they seem to focus on the cruel and unusal clauses.  If they had ruled lethal injection cruel and unusual, then they would have, in effect, abolished the death penalty, even though, in theory, some as-yet-undesigned method of execution might have satisfied the phrase.
I think they should focus on the due process and equal protection clauses (as the case that abolished it in the 70's did) and make a point similar to the one I made in my second point.
Better yet, however, would be legislatures choosing to abolish their death penalty processes, even if they left the possibility for it on the books.  The best would be removing the concept itself from our legal system.

More on the Supreme Court

Today I read the decision on the second amendment and am looking forward to writing about it, but I need to think about it further.  Michael and I have had some good discussions that have furthered my thinking (interestingly we have disagreed on many of these recent rulings).

But first I want to write more on the capital punishment case from yesterday because of various conversations and e-mail exchanges I have had.

1)  According to current US jurisprudence, capital punishment is constitutional and legal.

2)  The questions at hand would seem to be: A)  why do we execute certain criminals? B) what crimes meet the standard?  C) does this particular law meet the standard?

[I still haven't had a chance to read the opinions, so my analysis is not really an analysis of the decision, but my own philosophical reflections on the issue.]

Let's take A -- why do we execute criminals.

a)  Some people argue that we execute as a deterrent. 

i)  I am not going to discuss whether or not CP works as a deterrent because I think that is irrelevant to the moral issue.

ii) The argument from deterrence is a utilitarian argument.  It has flaws as an ethical argument.  First, the utilitarians themselves were opposed to CP because utilitarian reasoning is about maximizing pleasure. The argument from deterrence is inconsistent.

iii) One implication of the argument from deterrence is that a human being can be used as the means to an end.  For most ethical perspectives (particularly the deontological), it is immoral to use a human being as a means to an end.  According to these perspectives, the argument from deterrence is itself an immoral argument.

iv)  Deterrence is a mean toward some end (examples: "minimizing crime," "maintaining law and order," "obeying the law of God," etc.).  The end (whatever it is) is the actual moral principle.  Detterrence is the means for getting there.  The argument from deterrence is about the pragmatics of achieving the good, not itself about the good.

b)  We execute for vengeance.  If this is the case, then it is immoral, and CP should be banned.

c)  I think we execute because we believe that the only way for justice to be done is for this criminal to be removed completely from society.  In a sense, it is like removing a cancer.  Therefore, CP must be reserved for those crimes and criminals who violate our moral principles to the degree that justice merits their death. 

Now, let's take B.  What crimes/criminals meet the standard?  How do we determine it?

a)  I have been using terms like "heinous crime" or "depravity" of the criminal.  How are these determined?

Immanuel Kant argued in the Metaphysics of Morals that "the death sentence is pronounced on all criminals in proportion to their inner malice." 

Kant argued that we can determine the malice of the criminal by the very crime they have committed.  The human will is free and autonomous.  When a person makes a decision, they legislate a moral law for themselves.  For example, if you eat ice cream, then you are legislating to yourself that it is morally okay for you to eat ice cream.

Kant said that the laws we legislate for ourselves are only moral, however, if they meet the standard of being universalized: "Act only on that maxim through which you can at the same time will that it should become a universal law."  Therefore, if you eat ice cream, you are implying that it is morally okay for everyone to eat ice cream. 

It follows from this: "Act in such a way that you always treat humanity, whether in your own person or in the person of any other, never simply as a means, but always at the same time as an end."

What makes something immoral is that it becomes logically inconsistent.  For example, if you lie, then that means you believe it is acceptable for everyone to lie.  But if everyone lied, then communication itself would break down and the social practice that your own lying assumes would no longer exist.

b)  For murder it works that the murderer has freely chosen their own death by legislating for themselves that a human life can be taken.  The murderer has also demonstrated their malice or depravity because they have indicated that human beings can be used as means rather than as ends, and have implied an exemption for themselves.  If human beings all treated each other as means rather than as ends, there would be no human community and no morality.

Kant argues that a society must execute the murderer lest society itself share in the guilt and breakdown of society itself (which is logically inconsistent).

c)  I believe child rape, particularly violent rape of very young children, reveals  a level of malice and depravity that in many cases matches or even exceeds the act of murder. 

i)  child rape more obviously is an example of treating someone as a means for your own uses rather than as an end in themselves

ii)  The implications of universalizability are horrifying.  It would lead to the complete breakdown of human community because everyone would be both 1) psychologically traumatized as a victim and 2) guilty of extreme selfishness in their treatment of other human beings.

As to question C -- does this particular law meet the standard, I am too ignorant of the particular law to pass judgment.

3)  Two issues which are not relevant to the case.  I have heard A) since most abusers are victims of abuse we are actually executing victims who should be treated with care instead of execution, and B)  the execution of the criminal furthers the victimization and trauma of the child.

I do believe that these issues are relevant ethical issues.  I do believe they are relevant to a larger discussion about the American justice system, how we punish, and the morality of executing anyone.

However, they are not relevant to the case at hand.  Why?  Because the current American system of justice and punishment is not based upon an ethics of care.  I happen to believe the justice system would be improved by an ethics of care, but that is not its current basis.

Our system is based upon an idea of blind justice (goes back to ancient Greece), that justice is most often meted out in a system that treats everyone equally with due process and is blind to certain particulars.  An ethics of care takes into account all particulars (especially the web of human relationships) and understands that true justice can never be equal and that the pretension to equality actually visits injustice upon some people (particularly the oppressed, poor, etc.).

For the justices to consider the issues of 3A & 3B would be to consider a fundamental overhaul of the American justice system.  Something which I personally believe is best left to the people and their elected officials.

4)  One more issue not relevant to the case.  One friend wrote, "However heinous child rape may be the use of the death penalty in any case outside of capital murder is a dangerous precedent. It is a slippery slope that elements of our society will use to legal advantage."  That some element of our society will misuse their rational capacities in a way that risks moral harm to our society is surely an issue that ought to cause us to examine whether or not we will have the death penalty itself.  But I do not believe it is relevant in using our reason to decide which crimes/criminals/cases deserve CP, especially not if we reason well (which I hope I have done, but am all too aware that I may not have and that my argument may be flawed).

5)  I want to reiterate that I believe our society should not use the death penalty for any crimes.  But as a society we have not yet made that determination.  Until we do, we must continue to think critically about what crimes/criminals/cases do merit capital punishment.

Supreme Court on Capital Punishment & Child Rape

The Court ruled today that it is unconstitutional to execute someone for raping a child, throwing out laws in a handful of states.

I don't have time today to read through the decisions, like I do some weeks, so my comments are only based on a NYTimes article about the ruling.

The ruling was 5-4, with the conservatives being the 4 and Kennedy deciding the case for the majority. 

This week I find myself in agreement with the minority.  Let me explain.

First off, I believe that capital punishment should itself no longer exist in American society.  I don't know that it is "unconstitutional," but I don't think it is advisable public policy.  I am against it because it does disproportionately affect the poor and minorities.  It seems to me that we cannot guarantee equal justice and due process, and never will be able to get it 100% correct.  And when it comes to capital punishment we ought to be 100% correct because there is no way to correct for a mistake.  The clear injustices in application of the system reveal biases that make it unjust.  In that way it is maybe "unconstitutional."

That said, the current law of the land is that capital punishment is both constitutional and acceptable public policy.  The question would then seem to be whether rape of a child meets the community standards of a crime so heinous that it deserve the death penalty. 

The majority does not think so.  They believe that evolving standards of cruel and unusual punishment mean that child rape is no longer so heinous it deserves the death penalty.

I disagree with them.  Clearly the states that have these laws on the books do believe that the crime is so heinouss that it deserve capital punishment.  If the criterion of judgment is community standards, then I believe that on this issue the majority should have respected the opinions of these communities.

The recent case on lethal injection revealed the muddle of argument in the current court on these issues.  They not only agree on whether capital punishment ought to be legal, they disagree on what standards to apply.  See my comments here.

It is the Court's job to determine a standard which can be applied across the board.  Today's case continues to muddle the issues.

I don't think we should execute.  But as long as we continue to do so it is because we think some crimes are so heinous they deserve the extreme punishment.  To say that child rape is not so heinous is simply callous.

Website: Sermons, Worship, and Scriptural Study

Our church website has been updated by Tammy Pinkston and David Disbrow.  Now the worship and sermon pages are more comprehensive.  There is even a search function that makes it easier to search the sermons.  So, if there is some biblical passage or theological concept that you want to see if I've preached on, then you can search for it.

The sermon page is here.

The worship page is here.

And the page devoted to our Romans study is here.  We hope to create similar pages for some of the other study topics from the past.