The crowd outside Town Hall, on West 43rd street in New York, was spilling onto the street. The networks of animated conversations gave an added touch of vibrancy and color, and amplified the presence of that crowd assembled. To a passerby, it might have looked like the outside of a theater with a Broadway hit. I was as astonished as anyone to come upon this scene, for I was part of the show that had drawn this throng. The event was a “challenge” match, a debate between the spokesmen for two magazines, National Review and The Nation, at the beginning of April. The Nation was represented by the Rev. Jesse Jackson and the writer Christopher Hitchens. I was there to represent National Review, along with the estimable Stephen Markman, who was now an appellate judge in Michigan. The subject was capital punishment. Jesse Jackson led the argument against, and I would lead the argument in defense.
The readers of this space may wonder, since I have not shown any particular ardor over the years for capital punishment. But the prospect of this evening seemed irresistible, for it offered the chance to bring out a certain schizophrenia in the liberal soul. Most notably, there were the unfathomable inconsistencies in principle that allowed liberals to strike the most high-toned moral postures on capital punishment, while affecting the most serene obtuseness on the matter of abortion. Jesse Jackson, in the 1970s, had given some stirring speeches in the pro-life cause. He had spoken at the March for Life in Washington in 1978, and he had declared that:
Human beings cannot give or create life by themselves; it is really a gift from God. Therefore, one does not have the right to take away [through abortion I that which he does not have the ability to give.
The Rev. Jackson noted at the time that he himself had been born out of wedlock. Under current standards, he would have been a prime candidate for an abortion. But all of that came before the Rev. Jackson began running in Democratic primaries. It was all quite distant now—but not beyond recall, and not beyond a reckoning. In fact, the striking contrast between the earlier and the current Jackson could raise, enduringly, most searching questions that ran to the root. That evening in New York would provide a fitting occasion to raise those questions anew.
I noted that I was there to call the Rev. Jackson back to some positions he used to hold, and to summon him to rejoin some old allies. For there was nothing he could argue now, in opposition to capital punishment, that would not argue even more forcefully for the position he used to take in defending the lives of unborn children. Was there a disproportionate number of black men executed in this country? Was there not a disproportionate number of black children killed in abortions? But now, as I noted, the Rev. Jackson had come to accept the right of abortion in its fullest sweep, at any time, for any reason, even in the case of children who are partially delivered in the grisly partial-birth abortions. As the Wall Street Journal had pointed out, even people who accept capital punishment have not thought it necessary to collapse the skull of the condemned man and suck out his brains. Yet, the Rev. Jackson and his friends in Congress will defend that procedure rather than have any restraints at all on abortion. For people of ordinary wit it must matter profoundly as to whether we are dealing with innocent life, or with taking the lives of people who have already taken the lives of others in the most vicious way. I remarked then that “it will require some high powers of alliteration for the Rev. Jackson to explain why we are to attach a special sanctity to the lives of the vicious, while he would attach no sanctity to the most innocent lives of all, and impose not even the slightest legal restraint on the killing of children in the womb.”
There was no paradox then for our side to begin with the sense that the taking of life, at any age, in any condition, must bear the heaviest burden of justification. We took it as the first responsibility of the law, or of the political community, to protect people from the lawless, or unjustified, taking of their lives. And in doing that, we understand that the law may indeed have to deploy or threaten lethal force against the wicked, against those who would suffer no inhibitions on the killing of the innocent. We know then that it cannot be wrong in all instances for the government to take life, just as it cannot be morally wrong in all instances for a private citizen to take a life. There must be a critical difference between the killing done by a Hitler and the killing done by those who would resist being killed unjustly by a Hitler. Those two acts of taking life could not stand on the same plane in anything that calls itself a moral understanding.
Pope John Paul II would make a limited case in defense of capital punishment, and I too would make a confined case, cast in a slightly different way. I told the assembled group that my case would coincide with Hannah Arendt’s final summation on Adolph Eichmann: You have done something so wrong, so egregiously and deeply wrong, “that no one . . . no member of the human race, can be expected to want to share the earth with you. This is the reason . . . you must hang.” That argument can be made by people who reveal no passion to execute, and find no satisfaction in the building of jails. We can argue as to how widely the penalty of death should be applied, and for the sake of argument we may even decide to forego most of the prospective executions in this country today, and do that without affecting the main question in principle, which is: Could we really accept that there is never a case in which the death penalty would be warranted, not even in the case of an Eichmann or a Himmler? At a certain point we will find ourselves obliged to speak Hannah Arendt’s words, for saying anything less—accepting any lesser penalty—runs the risk of diminishing our sense of the depth of the wrong that was done—and diminishing, in the same measure, our sense of the importance of the victims and the wrong done to them.
Steve Markman marshaled the evidence to show that there was, in fact, no racial disparities in prosecutions or in the application of the death penalty. And besides, as we sought to show, that argument was morally empty: If the “problem” is that more blacks than whites are being executed, then that problem is dissolved if we merely execute more whites. That argument simply does not reach the main question of substance; and from that question, the Rev. Jackson spent most of the evening fleeing. He also managed to evade, until the end, the challenge laid down to him, to reconcile his position on capital punishment with his position on abortion. As the meeting drew to an end, he remarked that he did regard abortions as “morally wrong” in the latter stages of pregnancy, but he insisted, nevertheless, that it was “the woman’s choice.” I remarked that one might as well say that capital punishment was morally wrong, but that it should be the “victim’s choice,” or the choice given to the family of the victims, to take the life of the man who killed their relative.
Of course, the Rev. Jackson would never say that “racial discrimination is morally wrong, but that it must remain, in the end, the employer’s choice.” When it comes to something he regards truly as wrong, he has no trouble in recognizing the “logic of morals” as it was understood by philosophers as various as Thomas Aquinas and John Stuart Mill. As Mill put it, we stop using the language of dislike or disparagement and begin speaking instead of “wrongs,” as we come to think that people may rightly be restrained from what they are doing, or rightly punished if they cannot be restrained. Through the haze of rhetoric, the Rev. Jacksons words were in part misspoken: Abortion was for him, now, the woman’s choice precisely because he did not regard it any longer as morally wrong.
In 1978, the Rev. Jackson had said, that “it takes three to make a baby; a man, a woman and the Holy Spirit.” What had changed for him? The reference to the Holy Spirit marked the sense, perhaps, that we were not manufactured; that not even our parents had shaped our wondrous retinas and our chemical makeup. Had he now come to the judgment that we were indeed “made” or manufactured—and that there was no touch of anything transcendent within us? Had he changed, that is, his sense of theology and biology? Or had he simply shifted from the sense, as he had put it earlier, that “one does not have the right to take away” what God has given? Where had he gotten it wrong before: In the conviction that God is implicated in the creation of human life? Or was it rather that God is still implicated in creation, but that he has no authority any longer to command? Is that the new theology of the Rev. Jackson, or is it the theology that is installed mainly for people who run in Democratic primaries?