Author: David Opderbeck

There’s an interesting essay by Joseph Bottum in this month’s First Things titled Christians and the Death Penalty, in which he reflects on the recent execution of Michael Ross. Bottom does an excellent job, I think, personalizing the loss felt by those whose loved were murdered by Ross, without giving in to the impulse for revenge.

In fact, the main point of Bottum’s piece is that our civil tort laws are designed to mitigate the human instinct for revenge. Civil justice replaces blood feuds with judicial procedures and damage claims. The criminal laws, in contrast, are designed to punish and deter crime, and to protect the public from criminals. One difficulty with the death penalty is that it’s often portrayed as a means of brining “closure” to the victims’ families. This was certainly the case with the Ross execution — one of the family members even taunted Ross as the lethal injection needle pierced his vein.

I don’t blame that family member at all. If my wife or children were murdered or hurt by someone like Ross, I’d want to stick the needle in myself, and worse. But this is where Bottom has it exactly right: the law should act to restrain that urge, no matter how justified it seems. And, whatever position we as Christians take on the death penalty generally, we must be careful not to portray it as a means of private justice.

Without the private justice rationale, Bottum questions whether there is any justification for the death penalty in a democratic society. When nations were governed by dictators who professed the divine right of Kings, those in power carried out capital punishment directly in the name of God. In a democratic society that purports to be governed by the people, the power to exact revenge, according to Bottum, is more tenuous. If a democratic state can protect itself without taking a life, for example by lifetime imprisionment, the rationale for capital punishment, absent mere revenge, dissipates.

Here, I think, Bottum’s argument falters a bit. Bottum acknowledges that Romans 13 is often cited by Christians who are death penalty proponents, including most on the Evangelical Religious Right. Bottum interprets Romans 13 to mean that the state can use force to defend itself, as when a police officer uses force to stop a crime in progress or a soldier uses force in a just war. However, Romans 13 refers to the rule as “an agent of wrath to bring punishment on the wrongdoer.” The agency given the state in Romans 13, then, is broader than only one of protection. It is an agency of punishment as well.

This doesn’t, in my view, suggest that the death penalty is a mandatory component of any civil state, or even that the death penalty is always a permissible component of the state’s punitive agency. The “sword” referred to in Romans 13 seems pretty clearly to be a broad term for force. Nevertheless, it seems to me that the distinction between civil and criminal justice, while helpful to the death penalty discussion, doesn’t settle it.

If Dante were alive today, I wonder what punishments he would imagine for blog spammers. Those of you who maintain blogs undoubtedly have had to delete hundreds of comments and trackbacks for things like Viagra and Texas Hold ’em poker. Lately I’ve been seeing much more diversity in the spam comments — things like motorcycles, computers, cell phones. The purpose of these comments, of course, is to boost the spammers’ Google rankings by increasing their inbound links. Maybe I should be pleased that my site has some value as a link farm. But I’m not.

So, if I were Dante, here’s what I propose: the blog spammers will inhabit one of the lower levels of the Abyss. All of their spam comments will be printed out each morning and they will literally be forced to “eat their words.” Then, they will spend the rest of each day playing Texas Hold ’em — losing every hand — while gorging on Viagra, Cialis, and weight reduction pills until they explode. Finally, they will be forced, at the point of a pitchfork, to read out loud every blog entry they’ve ever spammed. And then they’ll do it all over again. Forever.

Since I’m not Dante, but am rather a lawyer of modest training and abilities, I’ll instead resort to the courts. Let this, then, constitute an official notice under the Digital Millenium Copyright Act, the Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM) Act, and any other arguably applicable state, federal or international laws, conventions, or treaties, that this site prohibits comment spam, trackback spam, and any other form of commercial solicitation, promotion or advertising, including, but not limited to, any use of this site as a “link farm” for the purpose of boosting search engine rankings. Further, the owner of this site considers himself a third-party beneficiary of any agreement between any blog spammer and any search engine, including, but not limited to, Google, which prohibits the use of “link farms” or other similar devices to affect search rankings. By spamming this site, you agree that the United States District Court for the District of New Jersey shall have personal jurisdiction over you in any dispute arising from your spamming of this site, and you further consent to venue in such District. In addition, you agree to pay the owner of this site’s attorneys’ fees, including a reasonable fee representing the value of the owner’s time if appearing pro se, incurred as a result of any dispute between the owner and you relating to your spamming of this site.

So there. If any of my lawyer friends read this any have any suggestions for causes of action against blog spammers, or if any of my blogger friends wishes to serve as the class representative in a class action suit, let me know.

I’m very pleased that my colleague Thomas Berg has blogrolled me on the excellent Mirror of Justice site. For those of you who haven’t yet found it, Mirror of Justice is a blog dedicated to the development of Catholic legal theory. There is some excellent discussion going on there.

One post that caught my eye is a review of a law review article that presents a nuanced evaluation of influence of Christian thought on early American law. The article’s author, law professor Michael Hernandez, acknowledges the influence of Christian thought on the founding of America, but also notes that the founders often departed from authentic Christianity, not least in the individualistic and racist attitudes that perpetuated African slavery and inequity towards Native Americans. Even as to one of our most revered documents, Prof. Hernandez notes,

The Declaration of Independence and the Founders’ views reveal that our nation was founded on the primacy of individual liberty. The extent to which the Founders elevated individual liberty contrasted with earlier Christian doctrine regarding the rights of individuals and the nature of law and government and also undermined the influence of normative Christianity on the development of the law.

This sort of careful analysis deserves a close reading among American Evangelicals. As Greg Sisk notes in his review of the article,

All Americans should be aware of the extent to which authentic Christianity influenced the founding of this nation, and Christians should proudly affirm that aspect of America’s heritage. However, unless and until Christian theorists constructively address the history described in this article, including proposing solutions to the continuing problems caused by our nation’s failings, Christianity’s influence on American law and culture will continue to wane. Christians are called not to whitewash the sins of our forebears, but “[t]o act justly and to love mercy and to walk humbly with [our] God.”

There’s an excellent editorial in the July Christianity Today entitled “Worship as Higher Politics.” The CT editors remind us American Evangelicals that true hope for societal renewal lies in genuine worship manifest in the life of the Church. They boldly call some prominent Evangelical leaders to task for distorting history and equating the founding of the America with some kind of golden spiritual moment: “[t]he not-so-subtle equation of America’s founding wtih biblical Christianity,” they observe “has been shown time and again to be historically inaccurate.” Most importantly, they note that “[i]n the heat of partisan politics (out of which many of these overstatements and misunderstandings arise), we are tempted to forget that the most potent political act — the one act that deeply manifests and really empowers a ‘kind and noble society’ — is the worship of Jesus Christ.” This is exactly right. I hope the publication of pieces like this in CT signals a change in American Evangelicalism away from our political idolatry and towards a more robust and honest emphasis on worship.