Feeds:
Posts
Comments

Archive for the ‘The laws of men’ Category

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 authorize 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.

Advertisements

Read Full Post »

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.

Read Full Post »

In each of the last two weeks we’ve seen a story that has made manifest the anti-Christian bigotry that exists on the front lines of British and American politics: last week, on this side of the Atlantic, Bernie Sanders’s unconstitutional imposition of a religious test for office* in his questioning of Russell Vought; this week, on the other side of the Atlantic, Tim Farron’s resignation as leader of Britain’s Liberal Democrats.

What makes both cases interesting has been the extent to which the facts of each dispense with the usual pretexts and red herrings. Sen. Sanders, for example, could have found ample grounds for rejecting Mr. Vought’s nomination as Deputy Director of the Office of Management and Budget in the nominee’s views of the federal budget. But in his remarks during the committee hearings Sanders was crystal clear: he was voting “no” because Mr. Vought had expressed belief in certain scriptural declarations about Jesus and eternal life. The final kicker in the Vermont Senator’s rejection of Mr. Vought was that Sanders didn’t just deem Vought an unsuitable nominee for OMB, he deemed him un-American: “this nominee is really not someone who is what this country is supposed to be about.” Hello, national covenant shaming.

Mr. Farron’s case strips away the usual pretexts even more perfectly: he was a political liberal who had consistently (so far as I know, without exception) defended the establishment of abortion rights and same-sex marriage in civil law. He had also, however, expressed faith in Jesus Christ, and this profession made him suspect to the Pharisees of Secularism in the media. These questioned him at every turn. Why? It couldn’t be because they disapproved his record of voting and public advocacy. It could only be that he didn’t hold to Correct Thinking.

This kind of thing isn’t new; neither are these episodes cause to sound the alarms. They are, however, cause for clear thinking and measured action among Christians in the English-speaking world. They reveal that the French Revolution’s laïcité is making a play to become a kind of Religious Establishment, and that its adherents have made great strides toward achieving that end.

 

* U.S. Const. art. I. sec. 6

Read Full Post »

From listening to a bit of FBI Director James Comey’s testimony before the House Oversight Committee, it isn’t really hard to grasp what was behind the Federal B.I.’s no-prosecution recommendation in the case of Hillary Clinton. Here is the Bureau’s thinking in a nutshell: even though the Espionage Act sets forth gross negligence as the required mental state for a violation, the feds can’t prosecute everyone, so they have reserved prosecutions for specific-intent cases. If the Director’s summary of the FBI’s historic practice is correct, then the no-prosecution recommendation in Clinton’s case is consistent with that. Fair play.

What I don’t get are Comey’s repeated, totally gratuitous, and absurd general statements about the criminal law: that crimes generally require specific intent rather than negligence; even that criminal statutes requiring only negligence may be constitutionally infirm on that ground. If that were so, a lot of people currently serving time for involuntary manslaughter would be amazed.

Nor do I get the Director’s waffling on the question of whether Clinton violated the law. The answer to that question, assuming that Comey’s characterization of Clinton’s information-handling as “extremely careless” is accurate, would clearly be “yes.”

If I were making Comey’s case, I would ask and answer four simple questions:

Q1: Did Clinton violate the law?

A: Yes. The law requires gross negligence in handling information; she was grossly negligent.

Q2: Can federal prosecutors prosecute every violation of the law?

A: No.

Q3: In light of that, how have federal prosecutors decided whom to prosecute?

A: By looking at whether the evidence further shows intent to violate the law, intent to cover up a violation, or intent to give confidential information to enemies.

Q4: Did Clinton violate the law in a manner that shows such intent?

A: No.

Therefore, Clinton violated the law, but the FBI’s no-prosecution recommendation is consistent with the FBI’s and the Justice Department’s treatment of other persons who violated the law’s gross negligence standard. The kinds of violations Clinton committed have customarily been handled, not by criminal prosecution, but administratively within agencies.

Was that so hard?

Read Full Post »

To engraft on any instrument a substantive exception not found in it, must be admitted to be a matter attended with great difficulty. And the difficulty increases with the importance of the instrument, and the magnitude and complexity of the interests involved in its construction. To allow this to be done with the Constitution, upon reasons purely political, renders its judicial interpretation impossible—because judicial tribunals, as such, cannot decide upon political considerations. Political reasons have not the requisite certainty to afford rules of juridical interpretation. They are different in different men. They are different in the same men at different times. And when a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean. When such a method of interpretation of the Constitution obtains, in place of a republican Government, with limited and defined powers, we have a Government which is merely an exponent of the will of Congress; or what, in my opinion, would not be preferable, an exponent of the individual political opinions of the members of this court.

Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 620-21 (1857) (Curtis, J., dissenting).

Read Full Post »

Antonin Scalia hasn’t been buried yet. Since his death was discovered Saturday morning, not one hour of one business day has yet passed.

The fact that we’re already approaching DEFCON 3 in the fight over who will succeed him on the Supreme Court of the United States is a sign of what President James Buchanan would call “a disease in the public mind” — the present disease being of a kind that would make one view Mary Crawford, who regarded happily the prospective enlargement of Edmund Bertram’s inheritance while Edmund’s older brother Tom was gravely ill but still alive, as the heroine of Austen’s Mansfield Park. I think about five seconds elapsed between the first news I had of Scalia’s death and the first published remarks about who’d be replacing him. Always keep the strategems sharpened, the hands ready to collect the spoils, and all that.

Were he alive, I do not doubt Scalia himself would have regarded with distaste the prospect of being replaced by a non-originalist, non-textualist Justice. However, I also have no doubt that Scalia the textualist would have loathed the idea of adding some kind of extra-constitutional “election year exception” to the appointments clause of Article II.

The world often is not a nice place for those who adhere consistently to firm principle — for circumstances that make the principle inexpedient are usually crouching at the door. But taking expediency over principled consistency generally creates bigger calamities: it damages the world, and has a strange way of backfiring sooner than the compromiser foresees. What that means, if you’re a textualist, is your philosophy doesn’t admit exceptions for distasteful results — and if you compromise for expediency now, your compromise will, sooner or later, produce results far more disastrous than the addition of one more Living Constitutionalist to the Supreme Court.

That’s already too much commentary for a holiday Monday, but I’ll add just a few words more.

For the living — those actually charged with the responsibilities of appointment and advice and consent, and the chattering onlookers — the text of the Constitution prescribes the next steps of this dance.

For the Scalia family and all the grieving, may God comfort them.

For Antonin Scalia: thank you, sir, for your good service to our nation; and rest in the peace of Christ.

Read Full Post »

Occasionally I start a book thinking, “I’m gonna need a crate of TUMS® to get through this.” I try to read at least 2-3 such books every year. And sometimes these books pleasantly surprise me.

The most recent such pleasant surprise: Stephen Prothero’s Why Liberals Win the Culture Wars. Granted, the book’s title and introduction are annoyingly triumphalistic. Prothero’s historical analogies — Jeffersonians, pro-Mormons and pro-Catholics as stand-ins for today’s “liberals”; Federalists, anti-Mormons and anti-Catholics as stand-ins for today’s “conservatives” — are rather forced. In his treatment of the current wave of culture wars, Prothero grossly understates the significance of the political mobilization of anti-religious Left within the Democratic Party in the 1970s. The historical “wins” Prothero cites are neither so clear nor so stable as he seems to think — I mean, how much of an “expansion of the American family” really occurred when theologically-heterodox, nominally-Christian Jefferson succeeded theologically-heterodox, nominally-Christian Washington and Adams as President? And Prothero’s shifts between his own idiosyncratic definitions of “liberals” and “conservatives” and the contemporary, colloquial definitions of those words are often a little too convenient.

Still, by the time I reached the book’s end I was glad I’d read it in full. On church-state relations, Prothero is basically a Jeffersonian — that is, he’s not hostile to religious free exercise, so long as it doesn’t come with de jure or de facto religious establishments or religious tests for public office. Granted, Prothero stands toward the left end of the Jeffersonian ground between Jacobin secularists and religious establishmentarians. But given the current increases in the numbers of both Jacobins and establishmentarians, I’m generally glad to see a man holding onto any corner of the middle ground set forth in the Virginia Statute for Religious Freedom (1786) and the First Amendment.

Read Full Post »

Older Posts »