So let’s talk Baltimore.

It makes all the difference in the world whether one recognizes the central fact about the Fourth Amendment, namely, that it was a safeguard against recurrence of abuses so deeply felt by the Colonies as to be one of the potent causes of the Revolution . . .

United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting).

The Fourth Amendment, of course, protects the right of the people to be secure in their “persons, houses, papers, and effects, against unreasonable searches and seizures.” Violations of those rights — e.g. general warrants, heavy-handed law enforcement tactics by the Crown’s agents — were the recurring “abuses so deeply felt by the Colonies as to be one of the potent causes of the Revolution.” Let that sink in. One of the most learned men ever to sit on the Supreme Court of the United States wrote that these abuses were “potent causes” of the Revolution — the armed insurrection we celebrate every July 4.

Right now, in Baltimore and across the United States, there is a class of law enforcement officers — not all, not most, probably not even many, but some — who have perpetuated recurring abuses that are, if anything, more aggravated than those “so deeply felt” by the Colonists that they took up arms against the British Crown. The Colonists, in Justice Frankfurter’s telling, objected to “searches without warrants and searches with warrants unrestricted in scope.” Bad stuff, to be sure, but not in the same class as, say, shooting a fleeing unarmed burglar in the back of the head.[1] Or — to bring this home to what just happened in Baltimore — seizing a non-violent suspect merely for fleeing, and that suspect suffering a severed spine while in police custody.

Significantly, many of the officers who transgress against the Fourth Amendment rights of American citizens will have their actions rationalized and justified. Rather than having the fruits of their unlawful searches and seizures suppressed at criminal trials, those noxious fruits are routinely admitted via doctrines like reasonable suspicion and the so-called good-faith exception. Rather than making lawless officers face investigation or prosecution, law enforcement departments and prosecutors all too often close ranks to protect the worst offenders among them. Even in civil actions under the Civil Rights Act, the judiciary clothes the transgressing officers with a “qualified immunity” that protects them even from being sued in all but the most extreme cases. These doctrines make the Fourth Amendment hollow, and impotent to protect the rights it was crafted to protect.

What does all this mean for what’s happening in Baltimore?

I’ll start with the obvious: it does not justify the worst results of the Baltimore protests — e.g. the wanton destruction of private citizens’ property, and personal injuries to innocent bystanders. Most people want nothing but to live peaceful lives and make an honest living, molested neither by lawless law enforcement officers nor by the rioters who say (in weird unison) with the badge-carrying thugs: “I am the law.” That anyone in Baltimore has suffered personal injuries, or loss of homes or livelihoods, is deplorable. One evil does not cure the other.

But as a matter of principle, and as a matter of realpolitik, Justice Frankfurter’s dissent in Rabinowitz should give the police apologists and the critics of the protestors — the vast majority of whose protests, incidentally, have been nonviolent — pause. When Fourth Amendment rights are regarded as “technicalities,” and when transgressions of those rights are repeatedly rationalized by police departments, prosecutors, attorneys general, and judges across the land, revolution is not far behind.

[1] Tennessee v. Garner, 471 U.S. 1 (1985).

[2] Rabinowitz, 339 U.S. at 70.

A modest proposal

Take the seething contempt out of your eye, and then you will see clearly to take the microaggression out of your brother’s eye.

What a difference twenty years makes.

In 1990 the Supreme Court of the United States overturned its earlier rulings — most notably Sherbert v. Verner [1] and Wisconsin v. Yoder [2] — which stated that the government could not, even by enforcement of “neutral laws of general applicability,” substantially burden a person’s practice of religion, unless such a burden were necessary to protect a compelling state interest. The Court’s abandonment of the Sherbert-Yoder doctrine generated such general outrage that an overwhelming bipartisan majority, led by then-Rep. Chuck Schumer (D-NY), introduced and passed the Religious Freedom Restoration Act (RFRA). The law, which is the Sherbert-Yoder test in statutory form, passed by a unanimous vote of the House of Representatives, and a 97-3 vote of the Senate. President Clinton signed it in 1993.

Since then many states have adopted their own versions of RFRA, pretty much all of which adopt the same Sherbert-Yoder test. Recently, Indiana followed suit. But the reaction has been far from the general acclaim that greeted the original RFRA’s passage. Nor has it involved shrugs or mild disapproval. Quite the contrary: major news organizations, sports organizations, a substantial number of large businesses, and even entire cities have signed on to “boycott Indiana.” Apparently all Indianans must suffer for their legislators’ willingness to pass legislation that protects a broad range of religious beliefs and practices, and targets no one for discrimination.

You read that last bit correctly: targets no one for discrimination. You will search the Indiana law for such words as “homosexual,” “sexual orientation,” “same-sex weddings,” or “same-sex marriage” in vain.

“Ah,” say the boycotters, “but the timing suggests the discriminatory intent.”

To which the proper reply is: The text of the enacted law is plain and unambiguous. The enacted text is all that binds a court. And the Sherbert-Yoder test embedded in the law has a long history of application by both federal and state courts, in cases that have nothing to do with gay marriage. The same test may be used — and has been used — to protect Orthodox Jews and Seventh-Day Adventists from employment discrimination flowing from their refusal to work Saturdays, to protect Muslims from being compelled to shave their beards, and to protect the right of members of the Native American Church to ingest peyote in that church’s rites. Even if the collective intent of a majority of the Indiana legislators were “discriminatory,” that intent does not appear on the face of the law. No court is bound to read discriminatory intent into it.

The collective hysteria over the law, though, comes from the fact that it may protect small businesses — particularly those businesses that provide services for weddings — from discrimination lawsuits and state action for refusing to service same-sex weddings. Note that word may. It’s no sure thing that a court interpreting the Indiana RFRA would hold even that requiring, say, a photographer to photograph a same-sex wedding “substantially burdens” that photographer’s free exercise of religion. But from the LGBT viewpoint [3] that’s about the worst possible result: a gay couple has to find another photographer, and the photographer whose religious scruples led her to decline the gay couple’s money would remain free to earn an honest living by her art. Meanwhile, the proffered doomsday scenarios — that the law would permit “No Gays Allowed” signs in restaurants, or ER doctors to refuse to treat gay and lesbian patients with impunity — aren’t within two thousand miles of the ballpark of possibilities. The suggestion that they are is a lie told by lying liars, signifying shameless dishonesty. No court has applied the Sherbert-Yoder test, the federal RFRA, or any of the similar state laws to reach such a result. The Indiana courts will not go boldly where no court has gone before.

But let no one miss the real story in this latest heat-without-light culture war battle. The reaction to the Indiana law’s passage is quite obviously a bigger story than the law itself. The LGBT movement has gotten a lot of mileage out of its victim status and painting any opposition as bullying after the fashion of Bull Connor. Historically, the analogy may have been apt; there was a time that “stay in the closet or suffer the consequences” was a real fear. I have lots of respect for LGBT people who lived through those hard times. I can sympathize with their injuries, which ought never to have been inflicted. But those times are with us no longer. When you have the power of most major news networks, the entertainment industry, the major sports organizations, a growing majority of politicians, and a whole bunch of rich multinational corporations to throw around, you don’t get to play Rosa Parks standing up to Jim Crow on the Montgomery bus anymore. The roles actually on offer are: gracious winner, or Sauron with the Ring.

“Boycott Indiana,” alas, is an example of choosing the latter.

[1] 374 U.S. 398 (1963).

[2] 406 U.S. 205 (1972).

[3] This is only a convenient shorthand; I am aware that there isn’t one “LGBT viewpoint.” I am also aware that more than a few LGBT (and “ally”) writers have expressed distaste for the notion of small businesses being bullied into providing services for same-sex weddings, and have no problem with RFRA as enacted in Indiana or anywhere else.

If you’ve clicked over here from the Rabbit Room, where my essay Lent Against a Million Faustian Bargains appeared today, welcome. This piece is a companion piece to that one, so having seen that one first, you’re ready to read this one.

If you haven’t yet read that essay, and have some interest in the subject of “Lenten politics” — what the political philosophy of Jesus Christ might look like, so far as we can trace it from His teaching and action in the canonical Gospels [1] — then I suggest you go read that first, and then come back here [2].

Okay, done? Very good. On to the miscellanies:

1. Jesus of Nazareth was not exactly a “political philosopher” — he was foremost a man of action — but his actions in the world proceeded from a deep and peculiar political philosophy. That political philosophy was unique, and remains so even to this day. It was and is so unique that His disciples often have failed to grasp it, erring either on the side of non-engagement with the political world, or engaging it by means Jesus forbade: coercion by threats or force, building political coalitions by lies and stirring up fear, etc.;

2. The political philosophy of Jesus, like all other political philosophies, has to do with glory. The modus operandi of the politicians of the world is to seek glory for themselves — to burnish “legacies,” to vindicate themselves and their political parties, etc. Jesus refused to seek glory for Himself, or to trade illegitimate worship for political glory when the Devil offered him “the kingdoms of the world and their glory.” We should not look at Jesus’s refusal as apolitical, but as a personal challenge to every man, woman and child, and a challenge to every political system corporately;

3. The platitudes and falsehoods characteristic of contemporary political discourse are symptoms of wanton glory-lust. They are designed not to frame real debates constructively, but to motivate the members of particular voting blocs to get the polls — either by bribes, or by fear, or by anger. That is a bipartisan phenomenon, and anyone hasty to take the speck out of his brother’s eye should first extract the plank from his own;

4. If that weren’t bad enough, contemporary political talking points have the disastrous side-effect of alienating real neighbors, friends, and family members. And, while there are undoubtedly real and important arguments afoot, they do not justify sacrificing real relationships. We know the people; most contemporary political arguments concern matters that are beyond the actual capacity of any human being to understand. I may know my neighbor. I do not know — and no one really can know — whether a law binding upon three hundred and fifty million people will help them;

5. Finally, the Rabbit Room essay is not about keeping aloof from politics. It is meant, rather, as encouragement to regard political arguments and talking-points with healthy skepticism, our own arguments with modesty. Privilege the things you know, and the people you know and love, over those things you do not and could not know. In the words of one of His disciples, Jesus of Nazareth “went about doing good” — personally doing good by deeds tailored to uphold the real dignity and heal the peculiar brokenness of particular people, on a scale that local communities could see and understand. He commissioned His disciples to go and do likewise. If you cannot see that that has political implications enough, you cannot see.

[1] Only the canonical Gospels imply any kind of political philosophy. The non-canonical Gnostic gospels, in addition to having far less historical value than the canonical ones, firmly divide the world of spirit from the material world in such a way that real-world political engagement becomes nonsensical.

[2] Incidentally, if you’re unfamiliar with the Rabbit Room, then you should make yourself familiar with it — particularly if you’re a fan of good music, good literature, and good art.

In Socrates’s last weeks, questions of piety and impiety were not the window-dressing of life. They were, on the contrary, quite literally a matter of life and death. He had been indicted on a charge of impiety, corrupting Athenian youths by teaching novel doctrines — he was a “god-maker” and did not give the old gods their due. He would shortly be tried and convicted on that charge, and then executed.


The Eagle, the symbol of St. John, as shown in the Four Gospels plate of the Book of Kells.

It is against that background that one must read the dilemma Socrates put to Euthyphro: Is piety loved by the gods because it is pious, or is it pious because it is loved by the gods?[1] It is easy for us to dismiss Socrates’s question as philosophical play — fitting for a boy, deserving of a whipping for a man (as Callicles put it elsewhere)[2]. But a man about to stand trial for impiety needs some idea of what piety means for a very practical reason: to defend himself. So we may suppose Socrates to have been completely in earnest. And his question is an important one. It would be a strange thing to worship a god who didn’t come into existence until after “the good,” and was subservient to “the good.” It would be terrible, however, to worship a god who could alter “good” arbitrarily — say, to make hate “good” and “love” bad.

St John the Evangelist lived a few centuries after Socrates, in a different part of the Mediterranean region. He was a Jew, not a Greek, though he wrote in Greek and his writings show some familiarity with Greek thought. So we should not be surprised that the prologue of John’s gospel, though its primary purpose is to place the life of Jesus of Nazareth within the life of the one God of Israel — God the Creator who spoke creation and life into being, God the Redeemer who dwelt in the Tabernacle and led the Israelites out of Egypt — also addresses the Greek world by John’s use of the word logos. The prologue’s opening phrases also happen to address (probably unintentionally) the dilemma Socrates put to Euthyphro.

The first character to appear in St John’s prologue is the “Word”that is, the divine logos. In the beginning, the logos was. While “word” is a good translation for logos in John — connecting John’s prologue with God’s act of creation by speech in Genesis 1 — it isn’t a comprehensive translation. If you hear the echoes of our word logic, and the suffix -ology, in logos, you’re not hearing things. While logos conveys the sense of word as speech-act, it also conveys rationality. And John says that, no matter how far back in time one might travel, or if it were possible to go back to before the dawn of time, the Word, the logos, would still be there. And it would not be subject to change upon the whim of any deity.

But no matter how far back in time one might travel — even if one went back to before the dawn of time — the logos would not be there alone. He would be with Someone. He would not just be sitting alongside that Someone in a passive Aristotelian kind of way, nor at war with Him in a Zeus-versus-Kronos kind of way, but facing Him, engaging with Him with a quality of attention and affection that we can hardly begin to imagine. Or, as John puts it: “And the Word was with God.”

John’s first two phrases, without more, almost solve Socrates’s dilemma. For if goodness and sound logic are comprehended within the word logos, then goodness — Socrates’s piety — has always existed, and is not subject to change. Moreover, that logos has always existed with God, neither apart from God nor in competition with Him. So one might say, without proceeding beyond John’s first two phrases, that if God and the pious logos are co-eternal, always together, fully engaged with one another and of one mind, then we have a set of conditions that cuts the horns off Socrates’s dilemma. But John isn’t done, and his third phrase resolves the dilemma beyond all doubt:

“And what God was, the Word was.”

The three statements, taken together, read like this: “In the beginning was the Word, and the Word was with God, and what God was, the Word was.” John calls the Word eternal, eternally in relationship with the God who called himself, simply, “I am,” and eternally in full possession and enjoyment of the character, nature and identity of that God, whose nature encompasses, indeed actively embraces, the Word’s piety. John solves Socrates’s old mystery by the plain statement of the eternal Mystery.

[1] Plato, Euthyphro 10a.

[2] Plato, Gorgias 485d-e.

The night almost had me:
Sleep with no dream, no rest;
Dark without Abram’s stars;
Lead silence that freezes
Flesh, blood, bone and marrow.

I had no breath to plead —
No word, no cry;
Only a groan to ask

And I heard in my breast
A woman bearing God
Groaning in labor pain,
Then a baby wailing,
Then two sighs, and soft breath
In the rhythm of sleep,
And rest.

That day Mother and Child
Spoke my language, uttered
A plea I understood.


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