Harvard Law Professor Laurence Tribe Defends U.S. Supreme Court Justice Antonin Scalia in Pitt JURIST Debate on Death Penalty, Democracy, Religion, and the Constitution

October 1, 2002

PITTSBURGH—Liberal Harvard law professor and former Gore campaign counsel Laurence Tribe has defended conservative U.S. Supreme Court Justice Antonin Scalia in a vigorous on-line debate with prize-winning Princeton historian Sean Wilentz over the death penalty, democracy, religion, and the Constitution.

Letters exchanged between the two scholars were published today on JURIST (jurist.law.pitt.edu), the legal learning Web portal at the University of Pittsburgh School of Law. In his controversial July 8, 2002, New York Times op-ed, Wilentz accused the Catholic Scalia of being antidemocratic and seeking to resurrect an ancient anticonstitutional notion of the divine state to sustain the morality of the death penalty. In the letters, Tribe said that Wilentz's op-ed "grievously misrepresented" the Justice's thinking.

Tribe—himself a frequently mentioned potential candidate for the U.S. Supreme

Court—said that while he had "no firm view" about the constitutionality of the death penalty and disagreed with Scalia on the overriding relevance of the framers' original intent, review of Scalia's remarks showed that he was neither opposed to secular democracy nor bent on infusing religion into the Constitution. Rather, Tribe said, Scalia was criticizing a "mistaken" tendency of modern Democrats to reduce the enhanced moral authority of the state to the much more limited moral authority of the individuals constituting it, a mistake that had made the death penalty indefensible for many, including even the contemporary Catholic church.

Were Wilentz correct in his original New York Times op-ed—from which, in his own letter published on JURIST, he said he would "retract nothing"—Tribe ventured that the views Wilentz attributed to Scalia would call for the justice's resignation, if not his impeachment and removal from office.

Given the significance of the issues raised by the Tribe-Wilentz exchange, JURIST has opened the debate to additional on-line commentary from legal scholars, historians, and interested citizens.

JURIST (jurist.law.pitt.edu) is the Internet's legal learning portal, an on-line intellectual community sharing legal ideas and information for an educated democracy. The New York Times has called it "the wonderful legal education megasite." Edited by its founder, University of Pittsburgh Law Professor and Rhodes Scholar Bernard Hibbitts, JURIST is hosted in the United States at the University of Pittsburgh School of Law, with international affiliates in Canada at the University of Toronto; in the United Kingdom at Cambridge University; in Australia at Macquarie University, Sydney; and in continental Europe at the New University of Lisbon.

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