During his recent campaign for the Texas governor’s mansion, Kinky Friedman was asked for his stance on the death penalty. His answer was pretty sensible for a politician in the American state most active in executions: “I am not anti-death penalty, but I’m damned sure anti-the-wrong-guy-getting-executed.” That makes sense, given the human longing for revenge and the simple fact that you can’t release a wrongly-convicted felon after lethal injection. But it doesn’t satisfy one crucial logical element.

Thomas Jefferson, among many other wise and sensible things, said “It is strangely absurd to suppose that a million of human beings, collected together, are not under the same moral laws which bind each of them separately.”. In the history of government I see three sources of power. First is simply the power of power, the logic of the absolute dictator. Second is the divine right of kings, in which earthly rulers were presumed to have been granted power over their subjects by a god. And finally come the democratic forms, first appearing in pure form in the United States, in which the source of power and authority is the will of the governed.

In other words, the power of a republican government comes only from the citizens. As an American citizen has no authority to take life outside constrained circumstances, such as self defense, he can’t delegate that authority to the central government. He doesn’t have it to delegate. It necessarily follows that the government has no such authority.

The power of a community, including a republican state, to defend itself is, on the other hand, a power that can be delegated by the people. An individual may defend his bodily self, his family, and his home. It follows that the individuals comprising a community can delegate that power to the community. The rules of war have been evolving over human history and formally enumerated as Jus Ad Bellum and Jus In Bello starting with Augustine of Hippo in the fifth century.

But for a community to decide, even with all the trappings of Miranda warnings, formal charges, grand juries, skilled representation of the accused, and a verdict of peers, that a person should be killed by agents of the state? It’s simply not logically possible.