In response to my recent article, “Capital Punishment: A Defense of Justice,” I elicited the following objection:
It is contradictory for those (like me) who claim to believe in “limited government” to grant government the power to execute its own citizens, for (presumably) a government with such power is Big Government, and the latter, being abusive and incompetent, is all too likely to execute innocents.
First, only an historical-illiterate would suppose that a “limited” government of the kind delineated in the U.S. Constitution is incompatible with the death penalty. The Founding Fathers believed in capital punishment and made allowance for it within the Constitution.
Second, fundamentally, governments exist for the sake of conserving the law. More specifically, a civil association, i.e. the kind of association that the United States Constitution describes, is in its very essence a legal association: It is a system of laws.
Thus, it is the principal function of governments, particularly our government, to punish those who would siphon from our body politic its blood and guts, its laws.
Due to optical considerations, this point is seldom made publicly, least of all by politicians and their propagandists in the media. It’s not pretty. Whether it is said that governments exist to “serve the People,” “promote the common good,” or “protect human rights,” most people prefer to trade in euphemisms, in deceptive drivel, rather than reckon with reality.
Unless a government has the will and the resources to punish those within its jurisdiction who undermine its laws—who attack the civil association that it governs—then it isn’t a government at all. It may be a Manager, a Therapist, an Educator, or an agent of Social Justice, but it is not a government, a custodian and enforcer of laws.
As for capital punishment, it is arguably more essential to the system of punishment that belongs to a civil association than any other form of punishment. It is the cornerstone, so to speak, the apex of the system, of the association. By way of the ultimate penalty, the Law makes it clear in no uncertain terms that it is supreme, that it unequivocally affirms both the agency of those that it binds as well as the justice for all under its jurisdiction for the sake of which it exists.
Third, if capital punishment should be abolished because government agents could make a mistake and execute an innocent person, then so too should war be abolished—however powerful the evidence may be that a preemptive attack could be the only way to prevent the deaths of untold numbers of innocent lives. After all, government officers can and have made catastrophic, lethal mistakes in this area too.
In other words, if the executioner must be relegated to the dustbin of history, then so too must the soldier.
Moreover, if the moral community known as the civil association must refrain from using capital violence against those that have been convicted only after having passed through the Law’s battery of procedures, then there is that much more reason for it to refrain from ever going to war against anyone for any reason ever again.
To see that this is so, ask yourselves these questions: Would it be easier to have to raise just one child or tens and hundreds of millions of children? The question is a no-brainer. It is easier to raise one child than to raise even two.
Which is easier, to teach and grade ten students or 200 students? Again, the answer is so obvious as to render the question rhetorical.
Similarly, it is vastly more difficult to make a mistake in punishing one innocent person than it is to mistakenly kill many innocents in a mass lethal attack.
Actually, these analogies understate the magnitude of the disparity in risk between capital punishment and war, for in the case of the former, the Law has ample opportunity to become intimately familiar with the circumstances of one its own. In dramatic contrast, in the case of war, the government has to reckon with what are alleged to be the circumstances of a foreign people.
Joseph de Maistre, a 19th century French Catholic in the conservative, reactionary tradition of thought, made these points. In speaking of “the executioner” and “the soldier,” de Maistre wrote:
“The one kills the guilty, convicted and condemned, and his executions are happily so rare that one of these ministers of death suffices in a province. As for the soldiers, there are never enough of them. They must kill without limit, and always honest men [men who are as committed to fighting for their homelands as are their enemies].”
De Maistre asks us to imagine that a “traveling genius,” a stranger to the Earth, was told that of these two killers, “one is very honored and always has been among all the nations of the world; the other is equally regarded as infamous.” If he were asked, “Which of these men would be the one who was honored?” de Maistre is certain that the stranger “would not hesitate a moment [to] bestow all praise on the executioner.”
The impartial foreign genius would answer: “He [the executioner] is a subtle being…he is the cornerstone of society…take away the executioner and all order disappears with him.” Moreover, the executioner is a man possessed of “greatness of soul” and “noble disinterestedness,” for he “devotes himself to such respectable functions [.]”
The soldier, though, is a different matter altogether. The soldier is “a minister of cruelty and injustice.” The genius asks: “How many individual injustices, horrors and useless atrocities does he commit?”
De Maistre concludes by noting that for as thankless is the job of the executioner, it nevertheless remains the case that “all grandeur, all power, all subordination, rest on” him; “he is the horror and the tie of the human association. Take away this incomprehensible agent and at that moment, order will give way to chaos, thrones will fall and society will disappear.”
There remains much truth to de Maistre’s insights. Capital punishment, more than any other law, affirms the supremacy of the rule of law and reminds a people that they are “a nation of laws.”
The executioner deserves as much as anyone to be thanked for his service.