This extraordinary tale of what we might call substitutionalism, begins with the case of Troy Davis who was sentenced to death by the State of Georgia in 1991 for the murder of a police officer. Davis has always maintained his innocence and sought a new new trial.   "Seven key witnesses have since recanted," according to an editorial in The New York Times, "and several people have charged that the main prosecution witness was the shooter. Rather than arguing that there were procedural flaws in his trial, Mr. Davis is making the more basic claim that he is innocent and that new evidence proves it."

U.S. Supreme Court Justice John Paul Stevens declared "the substantial risk of putting an innocent man to death clearly provides an adequate justification."  The majority of his colleagues agreed and ordered a federal judge in Georgia to review the new evidence and rule whether it  "clearly establishes" Davis' innocence.

But Scalia and fellow traditionalist Catholic, Clarence Thomas, didn't see it that way. "This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial," Scalia opined, " but is later able to convince a habeas court that he is 'actually' innocent."

The paradox that is Scalia (and Thomas) is revealed by understanding how  Scalia' applies his view of Catholicism to the law.

Back in early 2003, Scalia took part in a forum on the death penalty sponsored by the Pew Forum on Religion and Public Life.  "As a Roman Catholic,"  Pew noted in a press release, "that

Scalia disagrees with the recent teaching of the Catholic catechism and Evangelium Vitae 'that the death penalty can only be imposed to protect rather than avenge," and therefore is almost always wrong.'"

But perhaps more telling was Scalia's statement:

For the believing Christian, death is no big deal. Intentionally killing an innocent person is a big deal, a grave sin which causes one to lose his soul," he said. "For the non-believer, on the other hand, to deprive a man of his life is to end his existence--what a horrible act.

Scalia is often cited for his intellect, but the observation of one of my professors in law school regarding two dimensions of "due process" suggests to me a blind spot where blind justice should be.  My professor said that substantive due process is "what they do to you" while procedural due process is "how they do it to you".

While Scalia and Thomas may be correct about the procedural due process involved in this case, they are dead wrong about the substantive due process afforded Davis.  Alan Dershowitz did a great job of detailing Scalia's blind spot.

Let us be clear precisely what this means. If a defendant were convicted, after a constitutionally unflawed trial, of murdering his wife, and then came to the Supreme Court with his very much alive wife at his side, and sought a new trial based on newly discovered evidence (namely that his wife was alive), these two justices would tell him, in effect: "Look, your wife may be alive as a matter of fact, but as a matter of constitutional law, she's dead, and as for you, Mr. Innocent Defendant, you're dead, too, since there is no constitutional right not to be executed merely because you're innocent."

I would add that the underlying cause of Scalia's blind spot is his neo-Carlist outlook - one that readily substitutes the socially conservative traditionalist Catholic sense of morality for the unambiguous meaning of the constitution and the law.  Scalia's peculiar version of higher law is that if one believes in Jesus as the Messiah then the wrongly executed have nothing to worry about.  Such reasoning is the modern equivalent of dunking an accused witch - if she drowns; she's not a witch; if she doesn't, let's put her to death.

(And all this is from a man who has spoken out against both abortion and euthanasia on "pro-life" religious grounds.)   Scalia has taken the hubris of crackpot, idiosyncratic theology and sought to turn it into Constitutional doctrine. Fortunately, his view is the minority on the court. But that such a view is present at all is as disgraceful as it is extraordinary.