Courage is rightly esteemed the first of human qualities because it is the quality which guarantees all others.—Churchill

Tuesday, November 17, 2015

Standing at the Edge of the Crazy Cliff

In this here 21st century, you can't stand athwart anything, and yelling "stop" is what you do just before they plow you under. What you can do is more like this.
"You know that song 'If a body catch a body comin' through the rye'? I'd like – "
"It's 'If a body meet a body coming through the rye'!" old Phoebe said. "It's a poem. By Robert Burns."
"I know it's a poem by Robert Burns."
She was right, though. It is "If a body meet a body coming through the rye." I didn't know it then, though. "I thought it was 'If a body catch a body,'" I said. "Anyway, I keep picturing all these little kids playing some game in this big field of rye and all.
Thousands of little kids, and nobody's around – nobody big, I mean – except me. And I'm standing on the edge of some crazy cliff. What I have to do, I have to catch everybody if they start to go over the cliff – I mean if they're running and they don't look where they're going I have to come out from somewhere and catch them. That's all I'd do all day. I'd just be the catcher in the rye and all. I know it's crazy, but that's the only thing I'd really like to be. I know it's crazy."
It's crazy and thankless and mostly hopeless, but you catch as many as you can, one by one by one. This much you can do. You can be big.

Wednesday, November 11, 2015

The Court of the Friendless

What binds society together? The libertarians reply that the cement of society (so far as they will endure any binding at all) is self-interest, closely joined to the nexus of cash payment. But the conservatives declare that society is a community of souls, joining the dead, the living, and those yet unborn; and that it coheres through what Aristotle called friendship and Christians call love of neighbor. -- Russell Kirk, Libertarians: the Chirping Sectaries (1981).
A lawyer colleague of mine once shared a dispute he had with a neighbor. The specifics are lost to me now, but it was a species of minor conflict typical of sharing a property line. A disagreement over the placement of a fence, perhaps. The dispute arose in the usual way, with the neighbor initiating a dialogue by setting out his considered view of the matter. The lawyer, owing to that fundamental defect in his nature that arrived him at the business of litigation in the first place, joined the cause by declaring his intentions of legal action, thus abruptly ending the round of pleasantries. I have no doubt my colleague, an intelligent and well-trained lawyer, was correct on the merits of his legal case. But I would have suggested, had he asked: don't litigate where you eat. Lawsuits make bad neighbors.

Catholics and fellow travelers will recognize that violated in the story above was the principle of subsidiarity: the most proximate resolution tends to be the best one. The best neighbors, then, are those who share the same views, and in the case of minor differences, work toward a private resolution. When fault lines cannot be avoided, regulations of space and uses become necessary; and only in the extreme case, a judge – a complete stranger to the parties and the neighborhood – will be called upon to intervene. 

To be of any use, subsidiary depends on an affirmative answer to the question: Do we agree? Do we give the same answers, in the main, to the most basic and important questions of human affairs? For if we do, there is scarcely any need for law to answer them. The appearance of fault lines, on the other hand, stimulates the business of justice, producing laws and judges and enforcers to police the emergence of warring platoons. Anti-sodomy norms, for example, were not themselves challenged when enacted into law in colonial America. But when the cultural support crumbled, the laws proved less than worthless: by codifying itself, sexual ethics offered its head into the reformers' noose – and got nothing in return, for such statutes could only serve, if at all, as a supererogatory reminder of a broad cultural consensus now long extinct. A culture cannot be won by law, even if it can be lost by it.

* * * * *
I thought of this after listening to Clark Neily's recent presentation to the Orange County Federalist Society, with dispatches from the trenches of his work litigating in favor of economic liberties. Neily's book, Terms of Engagement, forcefully argues for economic liberties, originally abused by legislatures and now unfairly maligned by courts and the legal academy.  'Twas not always so:  the historical and legislative record seem to show the Fourteenth Amendment meant to protect economic liberties, and the cases so holding – now said to represent capitalism's tooth and claw at their very reddest – do not live up to their caricature; for when the historical record was not properly curated, and when legislatures fixed their gaze on the economy, and newspapers theirs on Supreme Court justices (The "Four Horsemen" was a NY Times coinage, as G. Edward's White's scholarship discusses), the precedent was licked. So devastating was the blow that the doctrine (now subsumed under the hopelessly confused moniker "substantive due process") was considered too damaged for later use in the Court's weird science of delivering a new body of sexual rights. The latter were conceived in the Constitution's "penumbra," without a hint of irony that economic liberties had just been cast into those very shadows.

Yet even while rescuing economic liberties is a just cause, I am more reluctant about Neily's broader argument for a more robust "judicial engagement," which essentially amounts to abandoning all presumptions in favor of the constitutionality of duly-enacted laws. Starting from economic liberties, the call for greater suspicion and scrutiny of statutes does wet the appetite. And I confess a temptation toward a judicial doctrine that would put teeth in the challenge to, say, environmental laws, passed not out of public-spiritedness so much as sacrament. Yet I cannot shake the suspicion that this move simply replaces one government tyrant with another.

To this, the libertarian reminds us: for want of what we might fear a robed tyrant, the next offensive statute will meet no opposition in the judiciary.  When it happened in Buck v. Bell, to give a real and terrible example, Justice Oliver Wendell Holmes refused to be a tyrant; he affirmed Virginia's eugenics law, and became a monster. And so a stark choice is offered: submit to the judiciary who might – might – give succor against the laws, or take your chances against your neighbors. 

The late Judge Robert Bork, thought by many, uncharitably, a tyrant and a monster both, also considered this choice. His answer seems wise, in that resigned, no-easy-way-out way that often attends true wisdom:
Once, after I had given a talk on the Constitution at a law school, a student approached and asked whether I thought the Constitution prevented a state from abolishing marriage. I said no, the Constitution assumed that the American people were not about to engage in despotic insanities and did not bother to protect against every imaginable instance of them. He replied that he could not accept a constitutional theory that did not prevent the criminalization of marriage. It would have been proper to respond that in any society that had reached such a degenerate state of totalitarianism, one which the Cambodian Khmer Rouge would find admirable, it would hardly matter what constitutional theory one held; the Constitution would long since have been swept aside and the Justices consigned to reeducation camps, if not worse. The actual Constitution does not forbid every ghastly hypothetical law, and once you begin to invent doctrine that does, you will create an unconfinable judicial power.
And so, one might conclude, Judge Bork would have joined Justice Holmes in affirming a duly-enacted eugenics statute.  And yet, perhaps not. We appoint judicial officers, not judicial philosophies, and while a judge ought to have a philosophy and let it be his guide, there is something else – conscience, maybe, or wisdom, common sense, or the divine spark, &c. – which compels him in the rare case to rise above principle. But when in doubt, judges ought to err on the side of humility and let the more nimble lawmaking process do its work: the states, let alone by the Court, sterilized – tragically, horrifically – about 28,000 following Buck v. Bell; the Court, meanwhile, after its pro-libertarian Roe v. Wade decision, has overseen – tragically, horrifically – the abortion of over 57 million, and counting. Small wonder that, ever since, nominees to the Court have been subjected to intense scrutiny of their positions on abortion specifically and their judicial philosophies generally, signaling the era of gridlock in staffing the federal bench. Even Citizens United drew hackles from the president at a state of the union address, and an unprecedented – if legally pointless – ballot initiative that will let Californians express their up-or-down opinion on the decision. 

Besides, without a roughly uniform concept of liberty, even the most "engaged" court would be left merely to arbitrate a war of all against all, and the judge's decision will be seen as resting on neither reason nor judgment, but merely will. There is a "curious assumption," Russell Kirk noted about libertarians' intellectual godfather, J.S. Mill, "that most human beings, if only they were properly schooled, would think and act precisely like John Stuart Mill." But in fact there appears little effort by libertarians at building civic friendship. And it is too much to expect the Court to impose a friendship from afar. Nor does it enjoy any superior moral record over the political branches: the American public now find sterilizing "imbeciles" repugnant, yet eliminating “populations that we don’t want to have too many of" is still in with an "engaged" Court majority. With an eye again to the scoreboard, the public corrected and apologized for its vile eugenics statute after a mercifully small fraction (about five percent) of the casualties caused by the folly in Roe, which the Court remains satisfied to uphold even as it daily multiplies its victims.

And so, the fear of an "unconfinable judicial power" is felt by all but the libertarian, who cannot imagine any act of the slavering mob he would not happily do without. Fearful of the whim of neighbors he considers stupid or theocratic, the libertarian damns their moralizing and asks judges to fill the void with pure, detached reason, to have the laws "remade after some pattern of 'normality' hatched in a Viennese laboratory to which I have never professed allegiance," in the words of C.S. Lewis. And so surrogacy, suicide, mutilation, cloning – whether these harms be self-inflicted or inflicted upon – all these and more at the center of our quest for meaning as social beings – all are ruled out by the libertarian, falling into the empirically untestable chasm of ethics and morals, the alibi of theocrats, disallowed from bringing any influence to bear on the laws. For reason, pure and detached from a moral sensibility, has nothing to do: without a major premise, all the minor premises in the world cannot complete the syllogism to arrive at a conclusion.  And so, as Elizabeth Anscombe said of David Hume, the libertarian is a mere – brilliant – sophist. For all the libertarian's efforts against moralizing, he succeeds only in casting it into the shadows; theology having been banned, the new theocrat emerges.

Uncertain, then, is democracy's fate under libertarianism, where the moral sense is out of bounds. Once judges can determine, with the aid of skilled litigators and their teams of experts, whether a given law is "rational" and therefore permissible, there is precious little discretion left to the people to order their own neighborhoods and communities. Which, it would seem, is as the libertarian prefers it. While libertarians want to shrink the government, they don't suppose it worth mentioning it means removing you from it.

Not that it could never work. As history shows, when the Court tests the public's patience – as in Dred Scott; and Lochner and Roe the following century; and even Citizens United in our own – some form of reshuffling of the deck tends to occur.  Until quite recently, in fact, justices were selected from a variety of geographies and backgrounds to engender public trust. Even Earl Warren worked hard for a unanimous decision in Brown v. Board, likely to signal that its disruptive but correct outcome was no flight of fancy or product of partisanship. In the Court's nearly two-and-a-half centuries, Americans have never risen against it; but on occasion, they do stir. 

And so even if you could put your friends on the court to hold you harmless from your neighbors, they will, when their patience wears, simply remove the judges from office or the court from jurisdiction. In the end, it will have been better to cultivate friendship with neighbors than favor with judges.

Tuesday, November 10, 2015

Teach the children well

Archetypal conservative Edmund Burke warned of "licentious toleration"; archetypal radical Herbert Marcuse cursed "repressive tolerance." They are, as a concept, the same, though sitting on opposite shoulders -- one entreating to "preserve," the other taunting to "destroy."

As the University of Missouri students sack Rome yet again, conservatives will rally with liberals around a libertarian principle of speech against the fringe left's "delegitimization of dissent as a first-order goal." But these purely procedural appeals -- to speech for its own sake -- will ring hollow to a generation already raised awash in speech for its own sake. "Was the world improved," Russell Kirk asked, "by free discussion of the Nazis' thesis that Jews ought to be treated as less than human?" Today's students would urge, sincerely, if quite wrongly, that theirs is common cause. The lesson they need to hear, then, is not that ideas have no content capable of being judged, or that spaces should be made for Nazi doctrine as equally valuable. Instead, they need to hear that there are real standards for discriminating between Nazis and university administrators, between racial disparity and racial oppression, between Critical Theory and critical thinking.

The first duty in civilizing the vertical invasions of modern barbarians is to teach them discrimination: to survey the endless stream of content and select, to the exclusion of all else, that which is beautiful, true, decent, virtuous, noble, courageous, lovely. These things are not neutral; beauty is not in the eye of the beholder only; ugly is not interesting. As Salvador Dali said, "I seated ugliness on my knee, and almost immediately I grew tired of it." These young people clearly want for the exercise -- they mean to stand for something -- but, lacking in training, their youthful idealism manifests in mau-mauing pusillanimous university presidents and issuing lists of meaningless demands.

Speech as sweet reasonableness and solitary principle doesn't take. Rights are not neutral. They must accompany instruction to their proper use -- to eschew licentious toleration -- lest they will ever serve as the implements of revolution against whatever "repressive toleration" is to hand. 

Monday, November 09, 2015

Libertarianism vs. the Natural Law

The libertarian-minded Cato blog endorses Kara Hopkins' swipe at Michael Gerson's book, Heroic Conservatism:
[None of this is] to say that social justice isn’t a Christian concern. But Gerson is more stirred by abolitionists and activists like William Wilberforce and Martin Luther King Jr., and the sweeping social change they wrought, than he is by Christ’s own model, which was conspicuously short on political impact and long on individual acts of mercy. He implies that his giants—--poverty, AIDS, illiteracy, genocide—are too big for hand-to-hand combat. Thus the Biblical call to “do unto the least of these”—--the hallmark of which is personal sacrifice—--must be replaced by government programs—the wellspring of which is coercion. If this constitutes an act of worship, it honors a failed god.
Now hold on here. Me, I like Gerson. He speaks to a void in the GOP that many in the party feel. It’s important to know who Gerson’s target audience is.

Quite so that it’s impolite to invoke God to someone who doesn’t believe in Him. [Which is why arguing from “natural law” is becoming a favored method by believers: both Suarez and Grotius submit that the natural law exists independently of deity.]

The fact remains that a certain acceptance of the New Deal and even the Great Society is entirely within the center, the mainstream, of American politics, and to ignore that fact is to lose elections. So too, we’ll find enough in Adam Smith himself to justify concern for the poor. It’s a human thing, not just religious, not to mention prudent for the cohesion of a society:
How selfish soever man may be supposed, there are evidently some principles in his nature, which interest him in the fortunes of others, and render their happiness necessary to him, though he derives nothing from it, except the pleasure of seeing it…That we often derive sorrow from the sorrows of others, is a matter of fact too obvious to require any instances to prove it; for this sentiment, like all the other original passions of human nature, is by no means confined to the virtuous or the humane…the greatest ruffian, the most hardened violator of the laws of society, is not altogether without it.
—--Smith, The Theory of Moral Sentiments
Now it’s true that Jesus didn’t order his minions to go rip off the rich man’s house and give the goods to the downtrodden. But as citizen-rulers in this here republic, just rule requires we look out for the little guy. One need not be a Christian to embrace that duty.

Gerson is simply speaking the language of many Republicans, the language of God, and that seems entirely proper since that’s where the God-ites tend to hang out these days. It may be so that he makes the libertarian wing uncomfortable with such talk, but they should heed Gerson if only for practical reasons, and in response to him, perhaps should try natural law arguments themselves.

For compassion is part of the natural law, of man’s nature, so there’s a structural problem here, and the libertarian-minded must tread lightly in making their practical [and sound] arguments. As Smith notes elsewhere about how man is wired, unless we admire the other fellow’s motives, we cannot hear his arguments or respect his deeds, no matter how much they accrue to another unfortunate man’s good.

Or as GK Chesterton put it, "Reason is always a kind of brute force; those who appeal to the head rather than the heart, however pallid and polite, are necessarily men of violence. We speak of 'touching' a man's heart, but we can do nothing to his head but hit it."

So easy with that libertarian bludgeon, Ms. Hopkins, et al. People vote with their hearts and not their heads. It's our nature, and it's not an entirely bad thing.

My Ben Carson Days

I attended a three year high school from 1978 to 1981. I took the Preliminary Scholastic Aptitude Test (PSAT”) in tenth grade, and I checked off a box in the PSAT application inviting colleges to send me their literature. I was contacted by the United States Military Academy (“USMA”) at West Point, New York; my best friend was contacted by the United States Naval Academy (“USNA”) at Annapolis, Maryland. We were both invited to attend a conference for high school students interested in attending a service academy and in a military career.

I went to the USMA conference; my friend went to the USNA conference, as did 100s of other high school students that year. Everyone knew the score: (1) the government picked up your education costs; (2) the government paid you a salary as you worked towards an engineering degree; (3) when you graduated, you were made an officer; and (4) then you served for four years in the military. It was a great opportunity: but only if you could survive the rigours of military academy life. And the conference gave you a fair opportunity to observe those rigours close up.

During the conference, a major approached me individually, by name, and pulled me out of earshot of other student-attendees. I have always assumed he (or his colleagues) had similar conversations with many if not with all the other student-attendees. I was told that if I apply, I would get in. It was as simple as that. I had very good standardized test scores and very good grades from my high school. When the major told me that I would get in if I applied, I believed him. I was told that West Point would find a Senator or Representative to nominate me, or I would come in with a number of students the academy could choose itself. I did not inquire about the details of the application process.


I told the major—having observed what the academy expected of its students athletically and otherwise—that I was sure to fail his programme. So I thanked him for the opportunity to attend the conference, but my applying was not in the cards. I made the right choice that day—although my decision was a real disappointment to my late father.

My scores and grades were good, very good, but I have no reason to think mine were the highest among the many student-attendees. I cannot believe that I was the only person to have received, what was in effect, assurances that if I applied I would get in. By any fair-minded description: it was an offer to attend West Point. Albeit, the offer was not in writing; it was an informal oral offer. Surely, many, many other people received similar offers. I expect that large list also includes Ben Carson.

PS: This conference was less than a decade after the end of the Vietnam War. This was a time when the service academies still had to make some substantial efforts to attract candidates with strong academic records. I expect those days are long gone. 

PPS: Please do have a look around New Reform Club. I can tell you that the material you find here, you will not find anywhere else. And thank you Chicago Boyz, Legal Insurrection, Right Coast, and Instapundit readers. 


Saturday, November 07, 2015

Michael Medved on the Puritans and the roots of American devotion & tolerance

Now that Halloween is over, it seems that we are not well on our way for the end of the year "holiday season," that strange conflation of Thanksgiving and Christmas. Before we get to Thanksgiving though it might be helpful to look over some timely reflections by Michael Medved on the Puritan goal in colonizing New England in the 17th century:
Most children learn that the Mayflower settlers came to the New World to escape persecution and to establish religious freedom. But the early colonists actually pursued purity, not tolerance, and sought to build fervent, faith-based utopias, not secular regimes that consigned religion to a secondary role. The distinctive circumstances that allowed these fiery believers of varied denominations to cooperate in the founding of a new nation help to explain America's contradictory religious traditions — as simultaneously the most devoutly Christian society in the Western world, and the country most accommodating to every shade of exotic belief and practice.
Make sure to read it all. 

Friday, November 06, 2015

John Dickinson: overlooked founder

Over at Front Porch Republic, John Wilson has written a short article on why we should pay more attention to John Dickinson (1732-1808): Our Lost Founders.  Dickinson, as Wilson points out, was an influential force prior to the Declaration of Independence, known not just in the colonies but by the England as well.  Once independence had been declared, Dickinson was active in the Continental Congress and as a result ended up writing the first draft of our nation's first Constitution, the Articles of Confederation.

Wilson notes that if Dickinson had not had the misfortune to fall ill during the Constitutional Convention of 1787, he likely would have had a larger impact on our current Constitution than he had -- although as Wilson points out in an aside, he had plenty of influence as it was, both on the text of the Constitution and on its eventual ratification. He wrote a series of letters in defense of the Constitution under the pen name Fabius.

Dickinson was also a committed abolitionist. Unlike many of the Founders, like Jefferson & Madison, who spoke against slavery while enjoying the benefits of owning human property, Dickinson took decisive personal steps against the institution of chattel slavery. Not content to merely talk the talk like many of the Virginia founders, Dickinson freed his slaves long before it was fashionable to do so. As Wilson points out, Dickinson freed his slaves because of his commitment to the principles of the American Revolution & a conviction that American freedom was incompatible with the institution of chattel slavery.  

Dickinson prophetically announced that the refusal of the Framers of the Constitution to address the problem of slavery head-on would cause nothing but trouble for the Republic.  Because the slavery issue was not settled on the side of human freedom, as Wilson summarizes Dickinson's position, the Republic was inevitably going to "have to face the consequences of our lack of courage."

Aside from his historical importance & principled opposition to slavery, Dickinson also stands as a model of a prudent statesman, a model well in need of revival in our own times.  As Wilson writes: 

Dickinson’s first draft of the Articles included provisions for an impost, which would have given the government an income, and subtle powers for the executive functions of the legislature that together would have made the convention of 1787 unnecessary.  He signed off on the Constitution because he was convinced that a combination of the equality of the states (the Senate was his contribution to that frightful summer) and the “power of the people” would restrain what Hamilton and others hoped would become an English-style government.  He also uttered the wisest and most prudent statement of the entire constitutional debate.  On August 13, 1787, he said, “Experience must be our only guide.  Reason may mislead us.”

John Dickinson lived long enough to know how right he had been.  We need to learn which of our fathers to honor.  Dickinson stands for the right combination of limited government, local loyalties, principled freedom, and the rule of law that republican government requires to survive.  We write biographies of nationalists, and pay too little attention to the men who gave us our liberty.
That quote by Dickinson is one of my favorites short quotes by any of the founders. It is a testament to his prudent and small-c conservative approach to politics & constitutional order.  A salutary example for our age!

Thursday, November 05, 2015

Justice Jackson’s Biblical Metaphor in Youngstown

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) (Jackson, J., concurring):
Just what our forefathers did envision, or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh.
Id. at 634 (emphasis added).[1]

As usual, Justice Jackson’s writing is beautiful and engaging. But is his metaphor apt and sensible?

First, Pharoah’s dreams were only enigmatic to Pharoah’s courtiers; Joseph—if we take the text at face value—knew precisely what the dreams meant. Thus, the dreams were not inherently “enigmatic”. Rather, they were only enigmatic to some people. Second, whether Pharoah had dreams (to use the plural) was the core issue being contested. Joseph’s position was that Pharoah only had a “single” dream, not dreams. [Genesis 41:25.] In both these ways, Jackson was wilfully rejecting the plain meaning of the text.

Furthermore, Jackson’s point of view is odd. It was Joseph’s position which (at the time) was adopted by Pharoah’s courtiers: his court. [Genesis 41:37.] In other words, not only is Jackson rejecting plain meaning, Jackson is wilfully choosing to restate the story—not through Joseph’s eyes—but through Pharoah’s courtier’s eyes prior to the time they consented to adopt Joseph’s interpretation. Only in this limited way can Jackson make his biblical metaphor work.

Welcome to modernity.

To put the issue in more modern terms ... Joseph tapped directly into original intent. Perhaps, then, the lesson to be learned from this is that those who are disconnected from tradition fall back onto functionalism, not because functionalism is the superior methodology, but because the prior interpretive tradition is one they can no longer readily comprehend. But those who still labour within the tradition: they can quite happily push forward confidently understanding prior art.


[1] This passage from Jackson’s concurrence has been cited in well over 100 legal opinions, journal articles, and books. 

Wednesday, November 04, 2015

What Law Could Learn From Popper’s Model of Science

There is a problem with modern legal scholarship.

There is a genre of legal scholarship which cries out to be written, but it is not written, or, at least, it is only produced intermittently. Their would-be authors fear sending such articles to journals: they fear that their scholarship will be left as unwanted orphans because no venue will publish them.

What class of article is that? Articles which pose questions without proposing answers; articles which only seek to start a line of new inquiry, but do not offer guidance or theories in regard to how to resolve the underlying issue.

The world of science used to (and still may, for all I know) have such articles. Scientific articles would publish empirical data falsifying the current theoretical wisdom. When a new theory was put in place, its progenitors might be people other than those who had brought down the prior wisdom.

Sometimes the new wisdom is put in place by those who brought down the old. But there is no strong need for the two tasks—(i) smashing the old idols, and (ii) installing the new faith—to be interlinked. It is a perfectly reasonable scholarly accomplishment merely to show that the old wisdom has failed—even absent a better, newer theory. But law lacks such scholarly articles—law lacks articles whose primary goal is to falsify and to destroy. See generally Karl Popper, The Logic of Scientific Discovery (circa 1934). 

By way of example, consider Article I, Section 8, Clause 1. It states:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States ....

Now compare Article I, Section 8, Clause 1’s language to ...

Enumeration Clause: “The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct.”


Elections Clause: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of ch[oo]sing Senators.”


Annual Meeting Clause: “The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by Law appoint a different Day.”


Compensation Clause: “The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States.”


Appropriations Clause: “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law ....”


Succession Clause: “In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.”


Appointments Clause: “[The President] shall have Power ... by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.” (Twice!: in a single sentence.)

               and, finally,

Criminal Trial Venue Clause: “The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.”

Unlike Article I, Section 8 and every other clause in the Constitution, here the specific clauses listed above use by Law language. Why? And if our goal is to understand, then why don’t we have a ready group of scholarly articles opening up this textual issue, even if those articles do not come up with a new, reliable answer?

Is this language a mere redundancy? Committee of Detail & Committee of Style—were all the members really such slackers? Or were they doing something that we (today) don’t understand, don’t want to discuss, and don’t want to discover? And because we don’t want to discover what we don’t already know, we don’t take on the difficult task of investigating anew and reconsidering so-called first principles and original understandings.


The ecumenical vision of George Washington: respect and liberty

Being no bigot myself to any mode of worship, I am disposed to indulge the professors of Christianity in the church, that road to Heaven, which to them shall seem the most direct plainest easiest and least liable to exception.  
- George Washington (1732-1799), Letter to the Marquis de Lafayette, Aug. 15, 1787, quoted in The Founders on Religion:  A Book of Quotations, edited by James H. Hutson (Princeton:  2005), pg. 193.

That quote nicely summarizes Washington's vision of religious pluralism, a vision that is evident throughout his career in public life, both as president and then elder-statesman of the young American Republic, and also earlier when he was the commander-in-chief of the fledgling Continental Army during the Revolution.

In 1775, the Continental Army invaded Canada in an effort to guarantee that colony's cooperation in American efforts to sustain relief from the British government short of overt independence. George Washington was the commander-in-chief of the Continental Army and he issued formal instructions to one of his field commanders, Colonel Benedict Arnold, regarding the proper deportment of the Continental troops on the subject of religion.

This was an issue in the Canadian campaign due to the strong anti-Catholic opinions that were then common among the vast majority of the American colonial population. The Canadians, at that time overwhelming French in language and culture, and Catholic in religion, therefore were possible targets of colonial bigotry in the field. In his Instructions to Arnold, dated September 14, 1775, Washington was clear and direct about the deference that was to be shown to the inhabitants of Canada in regard to their religious practices:
As the Contempt of the Religion of a Country by ridiculing any of its Ceremonies or affronting its Ministers or Votaries has ever been deeply resented—You are to be particularly careful to restrain every Officer & Soldier from such Imprudence & Folly & to punish every Instance of it—On the other Hand as far as lays in your Power you are to protect & support the free Exercise of the Religion of the Country & the undisturbed Enjoyment of the Rights of Conscience in religious Matters with your utmost Influence & Authority[.]
Two critical points are worth making about Washington's orders. First, in order to prevent resentment towards the Continentals, American soldiers were to be prevented, under punitive discipline if necessary, from attacking the Catholic religion then established in Canada. Without mentioning Catholicism by name, Washington prohibited any action that would result in the "ridiculing" of any Catholic clergy or "Ceremonies." There was to be no overt acts of mockery or contempt shown to Catholicism by the Continentals. The American army would be respectful, even towards religious views, worship and ministers to which the vast majority of American colonials at the time objected.

Second, in addition to demonstrating respect, the Continentals were to "protect and support the free Exercise of the Religion of the Country and the undisturbed Enjoyment of the rights of Conscience in religious matters." Washington's orders left no ambiguity -- the American intervention in Canada was to have no deleterious consequences for the Catholics there. Yet, at the same time, Washington couched his language to apply not simply to the Catholic population, but to all people who sought to enjoy their "rights of Conscience in religious matters." As the army would not mock or attack Catholics for their faith, so too it would not enforce Catholicism.

While Washington issued his orders to Arnold as an act of military strategy to avoid alienating the Catholic population of a fellow colony with which the Continentals desperately wanted to be allied,  his orders show a commitment to deeper religious liberty than what military expedience required. Respect for a despised religion, not simply tolerance. Liberty not only for the majority religion but for all. While the American intervention in Canada proved to be a failure in winning Canadian support for the American cause, Washington's orders regarding the army's conduct in regard to religion set a pattern of prudential and principled judgment. In this regard, as in so many others, Washington proved himself to be the Father of Our Country.

Monday, November 02, 2015

Russell Kirk on Magna Carta

The old Western Confucian blog has a very good post quoting the late Russell Kirk on the origins of the Anglo-American concept of constitutional government and the rule of law: Russell Kirk on the Great Charter. Well worth a read.

As Kirk was wise to point out, and not just on this topic, American institutions and American approaches to law and politics are grounded on the English experience upon which the American colonies built. That history is part of the web and woof of our country's laws, customs and traditions. To be ignorant of that history is to be ignorant of ourselves.

If interested, here's an online English translation of the original Latin text of Magna Carta, available through Fordham University's website.

Sunday, November 01, 2015

A quote for Sunday: providence & American order

And may that Being who is supreme over all, the Patron of Order, the Fountain of Justice, and the Protector in all ages of the world of virtuous liberty, continue His blessing upon this nation and its Government and give it all possible success and duration consistent with the ends of His providence.
John Adams (1735-1826), American Founding Father and second president of the United States, First Inaugural Address (1797).

Adams is an overlooked member of the founding generation, and he was easily the most accomplished scholar of that group. Trained as a lawyer but with a deep grounding in the classics (with a command of both Latin & Greek), Adams was well-versed not only in English legal theory but in the theological and philosophical controversies of the day. While Jefferson has a reputation of being a deep thinker, Adams actually was one. For Russell Kirk, Adams was an intellectual giant among our nation's presents. Thanks to the work of David McCulloch and the miniseries based on his book about Adams there has been a bit more appreciation of Adams, but not nearly enough.

Tuesday, October 27, 2015

Sir Thomas More as conservative reformer

What kind of reformer was Sir Thomas More? Often portrayed as a heroic martyr for the liberty of conscience, More had a long career in public service before his disagreement over the King's Great Matter led to his alienation from & eventual martyrdom by Henry VIII.  Here's an interesting reflection on Thomas More's work as part of the Northern Renaissance prior to the Reformation:  Thomas More, Christian Humanism and Utopia.  (Hat tip to the old Western Confucian blog.)  As the reflection points out, at the core of More's work as a lawyer, judge & statesman were some simple Christian principles:
He believed that through the wisdom and examples of the Holy Scriptures, specifically by serving one another in the active Christian love found in the Gospels, and the guidance by the universal Church and its doctrines, society could better itself until the time that Christ returned to earth.
That brief summary of More's key convictions explains how the Man for All Seasons pivoted from being a Church reformer in the period prior to the outbreak of the Reformation to such a staunch defender of Catholic orthodoxy & papal primacy during the Reformation -- a transformation that ultimately led to his martyrdom at the hands of Henry VIII.  Both before the Reformation & in that movement's early stages, More sought to defend the purity of the Catholic faith, first from the abuses present within the pre-Reformation Church & then from the destruction of the Catholic faith at the hands of a government seeking to impose Protestantism in England.

In that work, More is an almost perfect example of a conservative reformer. He was no radical; rather he sought to retain essential truths of the faith while working to correct abuses in the Church's way of life. Unlike his opponents, he was not a doctrinal innovator; he sought reform for the Church instead of its replacement. Once this is understood, More's actions during the early Reformation can be understood to be a continuation of his efforts to improve the Church prior to the Reformation. As such, More's basic approach to the question of reform stands well within the conservative approach to societal change set out by men such as Edmund Burke (himself a practicing Anglican who was married to a Catholic & sympathetic to Catholic freedom in England & Ireland).   Far from being a reactionary, a fundamentalist or religious fanatic (as he has been portrayed recently by the historical fiction Wolf Hall), More stands as a conservative voice for both reform of and fidelity to the Catholic Church, of necessary change within the constraints of substantive continuity.

What, then, of charges made against More that he tortured Protestants during his time in government, denying to his opponents the very right of conscience that he himself claimed when subject to coercive action by Henry's henchmen? The Supremacy and Survival blog has a good discussion of the actual historical record regarding Thomas More's actions in the suppression of heresy prior to Henry's break with Rome:
As summarized by John Guy in The Public Career of Sir Thomas More (Yale, 1980), "Serious analysis precludes the repetition of protestant stories that Sir Thomas flogged heretics against a tree in his garden at Chelsea. It must exclude, too, the accusations of illegal imprisonment made against More by John Field and Thomas Phillips. Much vaunted by J.A. Froude, such charges are unsupported by independent proof. More indeed answered them in his Apology with emphatic denial. None has ever been substantiated, and we may hope that they were all untrue" (165-66). See also G.R. Elton, Studies in Tudor and Stuart Politics and Government, Papers and Reviews 1946-1972, Volume 1, 158 ("It is necessary to be very clear about More's reaction to the changes in religion which he saw all around him. No doubt, the more scurrilous stories of his personal ill-treatment of accused heretics have been properly buried, but that is not to make him into a tolerant liberal.")
Paralleling this understanding of More, Cambridge historian and Reformation scholar Eamon Duffy has noted, "More was neither blood-soaked nor a hypocrite, but he was a man of his times, not of ours." And in that, More reflects one of the key characteristics of a conservative reformer: he was a man of his day, living not by abstraction but by the customs and the mores of hist time, tempered by prudential application of principle.

Monday, October 26, 2015

John Adams on Judaism's influence on human history

From one of our most important founding fathers and the second president of the United States:
I will insist the Hebrews have [contributed] more to civilize men than any other nation. If I was an atheist and believed in blind eternal fate, I should still believe that fate had ordained the Jews to be the most essential instrument for civilizing the nations ... They are the most glorious nation that ever inhabited this Earth. The Romans and their empire were but a bubble in comparison to the Jews. They have given religion to three-quarters of the globe and have influenced the affairs of mankind more and more happily than any other nation, ancient or modern.
- John Adams, Letter to F.A. Van der Kemp, dated Feb. 16, 1808.

Of the three pillars supporting western civilization -- Greco-Roman culture, the legacy of Judaism, and the prudential insights of the Enlightenment -- the most important is the legacy of Judaism.