No Patrick Henry Speeches were Flogged in Writing this Post

As the coronavirus and COVID-19 have spread, I have seen some grousing about States and localities declaring emergency curfews, requiring distancing, placing limits on numbers of assembled persons, declaring no-dining-out rules, etc. — such restrictions being, allegedly, “un-American” and “tyrannical” restrictions on freedom. In some places the States and localities — perhaps to preempt such fist-raising while motivating responsible voluntary action — have made these declarations as public health recommendations rather than rules.

But what if the education campaigns and recommendations don’t take, and States have to enact regulations that have the force and effect of law, and then someone challenges the regulations as unconstitutional? The answer is simple: such regulations will almost certainly be upheld if challenged. For any court to hold otherwise would require a radical break with historical and legal precedent.

This is more true of State than federal regulations. As James Madison wrote in Federalist No. 45: “The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite.” The States’ police powers are as American as apple pie, and have been baked into the American idea of federalized powers since 1787. So in a public health emergency, the State’s domestic police powers are more extensive, and potentially invasive, than the federal government’s enumerated powers (which derive chiefly from Article I’s commerce clause).

To pass constitutional muster, the State’s actions need only have a rational basis. So what should a State do when faced with a virus that spreads rapidly, has a lengthy incubation period during which the asymptomatic person is contagious (and unaware of that fact), and causes symptoms whose severity ranges from mild to fatal? And to make the State’s wicket a little stickier: what to do before a viral disease of so many faces when there’s also no vaccine, no proven cure, a crazy shortage of coronavirus tests, and not nearly enough hospital beds if there’s a major epidemic?

Well, duh. Of course State regulations to enforce distancing and generally staying home are going to be upheld. As they should be.

If the present moment inclines you to rattle the sabers, recite Patrick Henry’s speeches against the British Crown, and yell “Sic Semper Tyrannis!” please find something productive to do instead. And if you think State officials, public health administrators, and physicians are conspiring to achieve a revocation of your constitutional liberties that will continue when the present emergency has passed, think harder.

The Three Grumpy Virginians (Constitution Day 2019)

James Madison said that George Mason left Philadelphia in September 1787 “in exceeding ill humor.” A homebody and lover of family life, Mason was rarely happy to be away from his home on the Potomac River for long; and he thoroughly disliked political assemblies. But in the spring of 1787 he had set out for Philadelphia hopeful that the Convention might frame a government that was worth his most constructive collaborative efforts. And, for about two months, his work manifested that hope. Almost alone among the Virginians he saw the wisdom of the crucial compromise that gave States representation according to population in the House of Representatives, and equal representation in the Senate. And (judging from his speeches after that compromise was approved) the requirement that all bills for raising revenue originate in the House was Mason’s insertion. But as the summer wore on Mason’s irritation with the Convention grew. Mason hated the “dirty compromise” between the Deep South and New England that would keep the slave trade alive for two decades; and when the Convention refused to consider including a Bill of Rights in the Constitution he was apoplectic, declaring he would rather cut off his hand than sign his name to the document. Mason left Philadelphia vowing to oppose ratification, and was as good as his word.

James Madison, Mason’s occasional ally in Virginia politics, and Mason’s neighbor George Washington, were also unhappy with the government framed by the Philadelphia Convention, for reasons almost the opposite of Mason’s. They didn’t think the general government would be strong enough to check the fractiousness and corruption of the States: when the compromise that gave every State two Senators was passed they almost despaired of any good coming of the Convention. But they soldiered on through the hot summer, signed the Constitution, and left Philadelphia absolutely resolved that ratification of a flawed Constitution was better than the alternative — chaos.

What Mason, Madison, and Washington did about their disappointments is crucial.

Mason was among the leaders of the anti-ratification side at the Virginia Convention in 1788. But of the prominent “antis” he proved the most constructive. His example helped establish the tradition of honorable dissent in the early Republic. And though Mason torched his national reputation by opposing ratification, by his dissent he did much to lay the groundwork for the passage of the Bill of Rights three years later. He also went out of his way to mend relations with Madison — for whom he’d always had the highest respect — and it was Madison who finally brought the Bill of Rights to ratification.

Madison, who wrote many of what we call The Federalist Papers and led the pro-ratification side at the 1788 Virginia Convention, realized after the Philadelphia Convention that his disappointments in the Constitution were disguised blessings. There was no way the State conventions would have ratified a Constitution with a central government as strong as Madison had proposed in Philadelphia. And so he settled into the middle course of defending not what he’d wanted the Philadelphia Convention to adopt, but what it actually adopted.

Washington, whose friendship with Mason died over their disagreement about ratification and was never resurrected, did what he could to overcome what he regarded as the Constitution’s insufficiencies in the way he conducted the new Republic’s first presidential administration. And even as the first two-party split developed, he managed to hold the fractious States together mostly by the gravity of his personality.

#ConstitutionDay #Constitution232 #Philadelphia9171787

Independence Day and American Patriotism in the light of Christian liberty

When I was a teenager patriotism was pretty much my religion: the United States of America was god, the American ideal of liberty the golden rule, July 4 the high holy day of the year.

In the summer that Jesus of Nazareth pulled me into his orbit, two Christians told me, in a clear but gentle way, that the Religion of American Patriotism wouldn’t do. First, in a sermon preached on the Fourth of July (but not about the Fourth), I heard the pastor say that, while independence from a particular royal or civil authority may be a fine thing to celebrate, “independence” was an insufficient organizing principle for life. Then I read this in C.S. Lewis:

There are also occasions on which . . . a man’s love for his own country (has) to be suppressed or (it) will lead to unfairness towards other people’s . . . countries.

Persuasion works best without bombast, insults, or frontal attacks. If, at that stage in my life, someone had attempted in my presence a direct attack on America or patriotism, I would have rejected the message and the messenger would have lost credibility. As it happened, I was able to see my earlier error not because I was argued out of it by frontal confrontation, but because the truth came slantways at the error.

But it was vitally important, in that season when I was first seriously considering Christianity, that two Christians told me the truth and did not confirm me in error, or attempt to baptize the error itself. Because of them I was, after my conversion, better able to read the New Testament for what it is, without God-and-Country interpretive glasses that would have distorted everything.

I still love the United States — but as I would love a man and not a god. I still regard the American idea of liberty from officious civil authorities as a good way of managing the sinfulness to which such authorities are prone. But American liberty and Christian liberty are not one, and the latter is as far superior to the former as Sun’s light is to the Moon’s. As for the Fourth of July, it is not the day when Nature’s God descended upon Philadelphia and delivered the New Law, whole and infallible, to Thomas Jefferson. It was a day when thirteen colonies decided, despite much friction and infighting amongst themselves, to stand together against royal abuses. They staked their national aspirations not to a Crown, nor to blood and soil, but (as Abraham Lincoln saw years later) to an abstract principle: “. . . that all men are created equal, and are endowed by their Creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness . . .” And though not one tick of the clock has yet witnessed the United States having attained that ideal, the basic fact that thirteen new-born independent States had the wisdom to adopt and publish such a declaration is worth grateful remembrance and celebration.

Happy Fourth, y’all.

On Social Justice, the Gospel, and Denying the Gospel by One’s Fruit

Two weeks ago a document called the Statement on Social Justice and the Gospel (SJ&G) released and has since been making the rounds. I’m sure no one has checked the list of signatories for my name, but it isn’t on there and won’t be.

I post this comment not to go over the document’s details, nor to note quibbles with those details. I have some quibbles, but those are unimportant next to two big issues the document raises: one of which it gets right, the other that it gets wrong.

The big thing the document gets right is that “social justice” — a term that is far more connotative than denotative, and really needs definition before fruitful discussion of it can proceed — is presently being used by some Christians as a bludgeon against others. Precisely because of its imprecision “social justice” is a useful blunt instrument for pummeling an array of people: some of whom are really socially unjust, some scarcely socially unjust at all. The rapid evolution and lexical range of “social justice” has made it a pernicious epithet in the hands of power players and gaslighters. To the extent SJ&G highlights this, I appreciate its drafters doing so.

The big thing the document gets wrong, though — and the reason I have no inclination to sign — is distilled in a sentence in section VI’s “We Deny”:

Implications and applications of the gospel, such as the obligation to live justly in the world, though legitimate and important in their own right, are not definitional components of the gospel.

Maybe not. But it isn’t as though the only way a person can deny the gospel is by denying or altering the definitions. Peter was “out of step with the truth of the gospel” at Antioch because he refused to eat with Gentiles. His conduct contradicted the gospel — which is why Paul said Peter “stood condemned” there and “opposed him to his face.” One of the obvious fruits of believing that the cross reconciled us to God is working for reconciliation among estranged peoples and nations. If the tree doesn’t produce such fruit — especially if the tree does produce the contrary fruit of ethnic superiority, resentment, and segregationism — we may safely say the tree isn’t rooted in the gospel.

The Bearable Balance of Discipleship: A review of Rebecca Reynolds’s Courage, Dear Heart

Among the complaints made about Jane Austen’s novels is that her characters’ romances are too rational. Rather than getting swept away by whirlwinds of emotion, they take time to evaluate character, discuss tastes, consider family situations, observe good manners, even check incomes.

But dozens of Austen scenes, and several whole Austen plotlines, demonstrate that neither she nor her novels suffered from hyper-cerebral insensibility. One of the small examples is an exchange in Pride and Prejudice where Caroline Bingley says a ball would be “much more rational if conversation instead of dancing made the order of the day.”

“Much more rational, I dare say,” answers her brother Charles, “but not nearly so much like a ball.”

At the heart of Christian discipleship stands a twofold command, not new in the days of Jesus of Nazareth but made new by him: love the Lord your God with all your heart, soul, mind, and strength, and your neighbor as yourself. The command does not admit an ounce of Caroline Bingley’s reductionism: it demands vigorous love for neighbors we have seen as well as for God whom we have not; and it requires full spiritual, emotional, intellectual, and bodily engagement.

The great virtue of Rebecca Reynolds’s Courage, Dear Heart is its vigor and vigilance in maintaining this balance and wholeness — its stern refusal to sever any of the virtues from the others and let it run wild at the other virtues’ expense. In these pages (sometimes on a single page) the reader encounters deep feeling and lucid analysis, irresistible tenderness and uncompromising moral judgment. The book isn’t so much an exposition of the wholeness of Christian life as an enactment of it, and an invitation to the reader to participate in it. And when we glimpse the beauty in the book’s pages the invitation is a relief. For we grow tired of virtues swollen to madness in isolation or atrophied through neglect, sick from infidelities, numb from hearing trials answered with trite words, weary of finding the dozens of ways to crash the bicycle or run it into the ditch. Riding, on the other hand — maintaining forward momentum and balance even when the going is strenuous or we have to steer around or surmount obstacles — is bearable.

Just-out-of-the-oven take on Masterpiece Cakeshop

A few preliminary thoughts on the decision in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission (announced by SCOTUS this morning):

First, I’m quite surprised that the final vote was 7-2. Justices Breyer and Kagan did question Colorado’s counsel closely at oral argument, and Justice Kagan’s questions throughout showed particular attention to the case’s facts, but I didn’t see either casting a vote for Masterpiece Cakeshop. Certainly not both.

Second, no one should be too cast down or too elated by the decision. The key passage from the Court’s opinion shows that this wasn’t a touchdown, or even a first-down conversion, for the religious traditionalists, but more of a punt that took a nice bounce and left their defense in somewhat better field position for the next series than expected. Here is the key passage:

. . . the delicate question of when the free exercise of his religion must yield to an otherwise valid exercise of state power needed to be determined in an adjudication in which religious hostility on the part of the State itself would not be a factor in the balance the State sought to reach. That requirement, however, was not met here. When the Colorado Civil Rights Commission considered this case, it did not do so with the religious neutrality that the Constitution requires.

Given all these considerations, it is proper to hold that whatever the outcome of some future controversy involving facts similar to these, the Commission’s actions here violated the Free Exercise Clause; and its order must be set aside.

Slip op. at 3.

So . . . what? Had some of the Commissioners in Colorado spoken more respectfully of Jack Phillips’s faith, would the case come out the other way? Is the consequence of the decision going to be that counsel for State Commissions are going to tell their clients to be extra careful to say “we really respect your religion, but the law compels us to order you to design and craft the wedding cake, and to participate in remedial education about why you must make the cake”?

Where Every Basic Unit of Society Failed

The events surrounding Jesus’s entry into Jerusalem and his death underscored not only the failures of human nature generally, but the failures of every basic unit of human society. Close friends betrayed, denied, and fled. The regional civil and religious authorities (the Sanhedrin) failed at every turn to entrap Jesus into saying something blasphemous or seditious, and then voted to kill him anyway. The federal authority (Pilate) proved disconcertingly spineless by sending Jesus off to die. And the reason Pilate proved pliable wasn’t the Sanhedrin; it was because of direct action of a relentless crowd.

Properly stirred, crowds can “get things done.” Whether the things the crowd wants done ought to be done is another matter. Even the crowd that hailed Jesus’s entry into Jerusalem (right though they were to hail it) didn’t understand it: it would have installed Jesus as a proper nationalist King, and had little use for a Deliverer who would promptly weep over the city and shut down the Temple. And the crowds that showed up at Pilate’s court in the early morning to call for Jesus’s crucifixion had no intention of slowing down to think, or stopping to weigh contrary evidence; they knew what verdict “righteousness” demanded, and would see that verdict handed down.

There will be Saul of Tarsus

For some time I have been thankful that the Church dropped the dark notes of St. Stephen and Holy Innocents into the Feast of Christmas. In part, for the sake of those who mourn; in part, because it brings out Christmas’s natural patina — the patina that all beautiful things have, and without which brightness and comfort and joy devolve into triumphal kitsch. Mostly, though, I’m grateful for these days because they are helpful markers of what Christmas was, and is, in the story of the world: “a sign that will be opposed (and a sword will pierce your soul also).”

Wherever the gospel forms and moves a man to do good works in public, there will be envious informers and an angry mob with a Saul of Tarsus urging them to cast their stones. When the Light of the World dapples the walls of a cave in Bethlehem, then Herod the King — that oh-so typical political strongman who would co-opt the worship of God for his self-serving civil religion — will rage against the arrival of the Light.

A belated Constitution Day appreciation

Yesterday marked the 230th anniversary of the 1787 Constitutional Convention at Independence Hall in Philadelphia. And so, to mark the occasion, I present three alternate versions of an #OTDminus1.

Version One: A group of self-dealing aristocrats and men of big commerce who had, without authorization, convened a convention in Philadelphia to create a national government, enacted, under a convenient blanket of secrecy, a form of national government that served and extended their own interests.

Version Two: The Spirit of Nature’s God descended upon Philadelphia’s Independence Hall and delivered to the convention delegates the blueprints for the Perfect Union. James Madison interpreted, and Gouverneur Morris transcribed.

Version Three: The Philadelphia delegates, in the fiery furnace of free argument, forged a workable, artfully-ambiguous framework for a large Republic. They settled a few disputes, but did subsequent generations of Americans the more important service of *framing* others: setting the parameters within which good-faith advocates could advance, or oppose, arguments about the proper scope of government, the relations between the central and State governments, and how the three branches might exercise their separated powers.

The Convention’s actions, it is true, were more than a little cheeky and not really authorized in advance: the delegates were supposed to amend, not replace, the Articles of Confederation. But the delegates’ chutzpah, and the essential wisdom of the thing they produced, were ratified and blessed after the fact by the States’ conventions, proving that guts and sound judgment are always authorized. A grateful realist can look back at the Philadelphia Convention’s work — a mixture of boldness, compromise, cunning, and wisdom — and marvel at its cleverness and durability.

Bad company, bad citizens

Fifty years ago, the main cultural tension of being a Christian in the United States was that the Christian believed things regarded as naive and false by the general culture: that believing in an omnipotent creator required the checking of your brain. Now the main tension is that the Christian’s tradition is regarded by the general culture as immoral: that the God of scripture is a bad character, and those who adore him are misshapen by the company they keep.

Consequently the work of the apologist today resembles more closely that of the early church’s apologists. The Romans, to be sure, regarded the Way as false, but (more gravely) they regarded it as dangerous — a thing that produced bad citizens.