Archive for the ‘The laws of men’ Category

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?

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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).

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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.

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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.

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Everybody knows that a few weeks ago, Jerry Falwell, Jr. made some rather controversial statements about gun ownership and self-defense to the students of Liberty University. A few people know that yesterday, John Piper responded with a lengthy nine-point rejoinder that comes within a hair’s breadth of absolute pacifism — although Dr. Piper did stop short of such a position by noting that the State at least bears the power of the sword, and by conceding the existence of (unspecified) “situational ambiguities.”

I have been thinking a lot about the phrase “they’ll know we are Christians by our means” lately. Are American Christians formed foremost by Americanism, or by the Way of Christ?

There is a caricature afoot of the history of how Islam spread: i.e. by the sword and nothing but the sword. That is a woefully incomplete picture. Islam spread by a combination of eloquent proclamation of the gospel according to Muhammad, shrewd diplomacy, and the sword — the three means used variously, as expedient.

You could say that the gospel of Liberty, United States Version (USV), has spread by a similarly expedient combination of means: proseletyzing (America as the “city on a hill,” anyone?); shrewdness (e.g. the purchases of Louisiana and Florida); and the sword (the armed displacement of First Nations at the beginning, numerous overseas interventions lately, in between and more controversially, the Civil War).

So even though Piper exceeds reason in a few places (especially the section about defense of family), I find it totally refreshing to see an American evangelical Christian carefully untangling American means of gospel-spreading from the Scriptural ones.

The early Church seems really to have been marked uniquely by its particular reliance on testimony — the testimony of words, mercies, and lives laid down literally and figuratively — occasionally on shrewd diplomacy; never the sword. The apostles spent much of the book of Acts in want and danger, and as targets of persecution, and they didn’t once get out the sword.

What clear, startling testimony that is. That is a kingdom not from the world.

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One final word on the Wheaton controversy: Increasingly, the controversy generated around this looks to me like an attack on the right of an evangelical college to define and maintain its doctrinal boundaries. Hence the consistent accusation that Wheaton College acted from a bad (and legally suspect) motive — “enmity toward Muslims” — rather than a consistent, honorable, and legally protected one — i.e. concern for doctrinal orthodoxy.

I have not yet seen actual evidence proffered that the Wheaton administrators acted from the legally suspect motive rather than the legally protected one. No matter. If you re-publish the narrative often enough, people will believe it. Evidence not necessary.

PPS. I am grateful that at least one major newspaper, The Chicago Tribune, gets it.

PPPS. I haven’t mentioned this, but it absolutely should be acknowledged and applauded: I have not seen or heard even a whiff of accusation** against Wheaton College from Dr. Larycia Hawkins herself. On the proposition “Christians and Muslims worship the same God,” I would argue the negative, Dr. Hawkins the affirmative — but she has shown kindness, consideration, and affection toward those with whom she disagrees:

A holy kiss to you who disavow the idea that Muslims & Christians worship the same God: I love you. Peace & respect.

Thank you, Dr. Hawkins. And the peace of Christ to you.

** UPDATE: That was true when I posted this in December 2015. By January 2016 it had become less true. Dr. Hawkins’s accusations against Wheaton were certainly not the most pointed or inflammatory accusations I saw, but they were accusations, and they were public. The extent of their truth I am not in a position to judge.

As to the peace following the Hawkins-Wheaton settlement of differences, it was an awkward, uneasy peace.

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Reading up on the 1800 Presidential election is incredibly instructive. If the current state of American political discourse freaks you out — if you think it has acquired its unflattering features, its peculiar kinks and rifts, only recently — then read up on what Adams and Jefferson partisans said about one another.


Note the second item.

One discovery of particular interest: Had debates over the peculiar institution of chattel slavery not so dominated the years 1820-1860, the American Civil War may well have been fought over questions of Religious Establishment and Religious Free Exercise. The competing strange-bedfellows coalitions, had they formed along the lines suggested by the arguments over public theology in 1800, would have looked something like this:  New England Federalists, Congregationalists, Presbyterians and Episcopalians, which favored state Establishments and religious tests for public office, lining up against Southern Republicans, Midlands Quakers, and Baptists, who rejected religious tests for public office and favored broad accommodations for individual conscience and religious freedom.*

The Jeffersonian Republicans won the 1800 election and, simultaneously, Jefferson and his allies won the argument for broad religious accommodations and against Establishments. Their victory was so overwhelming that it remained remarkably stable for the better part of two centuries.

That Jeffersonian settlement of religious freedom, though, is vanishing. The New Secularists, who started organizing politically and mobilizing in earnest in the early 1970s, and the Christian Coalition that quickly followed suit, have both shown little interest in accommodations. While there are plenty of would-be Jeffersonians left — an odd collection of old-school Baptists, neo-Anabaptists, Catholics, Orthodox Christians, and classical secular liberals — these parties are too divided by other issues to form an effective principled political coalition on this one.

Establishment and religious tests, therefore, increasingly look like the order of the day. Which leaves the following as the most live questions: Who will be the Establishment, and what will be the religious tests?

* Full text of Virginia Statute for Religious Freedom may be found here.

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