Mensch tracht, un Gott lacht

Monday, November 30, 2015

Remembering Corizon Aquino

[Picture: Corazon Aquino in 1986 during the People Power movement that lead to the downfall of the regime of dictator Ferdinand Marcos.]

I was thinking recently about politicians of faith who stand up to restore ordered liberty to their societies, and former Philippine president Corizon Aquino came to mind. Here's a news story about her passing in 2009: Sad news today on the death of former Philippine president Corazon Aquino. The widow of slain democracy activist Benigno Aquino, Cory (as she was known) led the People Power uprising that ousted dictator Ferdinand Marcos from power in 1986, bringing democracy and the promise of human rights to the people of the Philippines.

A woman of faith, she was motivated by her strong Catholic convictions into standing up for the rights of the people. A woman who loved her family, she worked to carry on her murdered husband's legacy. A proud patriot who believed in a Republic with the rule of law and respect for each human person, she was a symbol of hope for the millions of people who took to the streets during the People Power movement, ushering in the first of many revolutions for freedom in the late 1980's.

Like Lech Walensa in Poland, she was convinced that her mission to stand for human liberty was part of her vocation as a Christian. After she became president, there were constant coup attempts against her -- questioned as to how she could hold on to preserve the rule of law in the country in the face of such relentless lawlessness, she responded simply, "If the country needs me, God will spare me." She was an example not only to the people of the Philippines, but to freedom-loving people the world over. I remember as a high school student here in the States watching the news reports of the People Power revolution in the Philippines, and seeing her pride and dignity and determination to vindicate the legitimate rights of the Filipino people.

Like the other great leaders of the 1980's -- Ronald Reagan, St. John Paul II, Margaret Thatcher -- she understood the call of freedom, and the yearning of the human heart to be free. Aquino was not a perfect president, and her regime had its fair share of problems. The corruption within Philippine politics was more than any single politician could remove. But she served the people as best she could, and she always kept in the forefront the interests of her country. She was an example of all who live in challenging times, to all who face choosing to give in to tyranny or to fight -- peacefully, non-violently and in the power of the Gospel -- for liberty and human rights. Maraming salamat po sa inyo, Corazon Aquino.

Sunday, November 29, 2015

Remembering Catholic liturgical patriotism in the early American Republic

Today is the first Sunday of Advent in the Christian liturgical calendar, a time when Christians begin to prepare for the celebration of Christmas. I thought it might be interesting at the start of this liturgical season to explore a bit the way the Catholic Church in the early American Republic incorporated patriotism for the new American nation into its ritual life.

One of the important religious developments in the early American Republic involved the rapid emergence of public toleration for Catholics, previously considered for the most part as members of a possibly seditious sect by the majority of American colonists. Anti-Catholicism was and is deeply engrained in American culture, not simply a relic of the colonial past but something powerfully affecting the present. As this older article from the LA Times points out, overt anti-Catholicism was part and parcel of American culture well into the 20th century:  When America feared and reviled Catholics.  (Hat tip to: Spirit Daily.)  And it is important to remember that anti-Catholicism wasn't just about speeches and anti-Catholic rhetoric in newspapers.  It involved violence, particularly in the South:
Religious fear on this scale had fatal consequences. Eighty-nine years ago in Birmingham, Ala., in the midst of this simmering anti-Catholic atmosphere, Father James E. Coyle was brutally slain. Coyle, a native of Ireland, had been sent to the United States to begin his priesthood. When he dared to stand up in defense of his faith, federal agents warned the bishop in Mobile about death threats on Coyle's life and pledges to torch his Birmingham church.
Such threats were not idle. During this same period, the popularity of the Ku Klux Klan exploded after it rebranded itself a "patriotic" fraternal organization dedicated to safeguarding America against the threat of Catholics, Jews and the immigrants flooding the country in unprecedented numbers. This new Klan attracted some of "the best men in town" — doctors, lawyers, judges, law enforcement officers, even clergymen.
On Aug. 11, 1921, one of those men — a Methodist minister, the Rev. Edwin R. Stephenson — brought a loaded gun to the porch of Coyle's home and shot him dead in front of a street full of witnesses. About an hour earlier, the priest had committed the apparently unforgivable act of marrying Stephenson's 18-year-old daughter to a practicing Catholic wallpaper hanger of Puerto Rican descent.
The KKK quickly circled its wagons around its initiate, raising funds for Stephenson's defense and hiring his lead attorney, a young future Supreme Court justice, Hugo Black. Black, it was hoped, might persuade a Southern jury to see Stephenson as the community's champion rather than a bigoted killer. Articles published in the Menace throughout the trial pounded the same theme, pitting one of the most potent worries of the day against justice itself.
You can guess the outcome. Stephenson walked out of the courthouse a free man, and he never so much as apologized. Black joined the Klan himself 18 months later and, with its support, was elected to the U.S. Senate.  Only years later did he calmly state that he did not share the Klan's beliefs and was no longer a member, after a reporter revealed his membership as he prepared to take his seat on the Supreme Court. Black survived the ensuing scandal.
Anti-Catholicism, as the article points out, was ingrained into the American experience during the 1920's, and it was a powerful force well into the 1960's throughout the culture.  Although still found in some corners of the the Left and in academia, anti-Catholicism is considerably weaker than it used to be within our culture -- something that we should all be thankful for.  Still, it is amazing to see how prevalent it was, that a Methodist pastor in the KKK would kill a Catholic priest, and then be acquitted thanks to the services of a lawyer, Hugo Black, who would later join the Klan and go on to become a U.S. Senator and a Supreme Court justice.  

While many of those present at the Founding of our country remained personally hostile to Roman Catholicism -- John Adams and Thomas Jefferson certainly spring to mind -- in the public square the federal government and most state governments observed a tolerant attitude towards the formerly despised religion. Part of this embrace was fueled by French support for the American Cause during the Revolution, part was fueled by the outstanding efforts of Catholic patriots to support the Cause during the war, and part was fueled by the idea of non-establishment that took root after the ratification of the current Constitution and the adoption of the Bill of Rights.

In addition to this embrace of Catholics, there was an embrace by Catholics of the new Republic. Freed from the legal disabilities and overt persecution that many Catholics had experienced in colonial America, the (then) tiny Catholic Church in America quickly adopted a very positive and patriotic attitude towards the new government. Nowhere can this embrace of robust patriotism be seen better than in the life and work of John Carroll (1735-1815), the first Roman Catholic bishop appointed in the United States, and a cousin to two signers of the Declaration of Independence. In 1791 while Carroll was Bishop of Baltimore (effectively the bishop of the entire United States at that time) he composed this prayer, which he ordered recited in all Catholic parishes after each Mass on Sundays:
We pray, Thee O Almighty and Eternal God! Who through Jesus Christ hast revealed Thy glory to all nations, to preserve the works of Thy mercy, that Thy Church, being spread through the whole world, may continue with unchanging faith in the confession of Thy Name. We pray Thee, who alone art good and holy, to endow with heavenly knowledge, sincere zeal, and sanctity of life, our chief bishop, Pope N., the Vicar of Our Lord Jesus Christ, in the government of his Church; our own bishop, N., all other bishops, prelates, and pastors of the Church; and especially those who are appointed to exercise amongst us the functions of the holy ministry, and conduct Thy people into the ways of salvation.
We pray Thee, O God of might, wisdom, and justice! Through whom authority is rightly administered, laws are enacted, and judgment decreed, assist with Thy Holy Spirit of counsel and fortitude the President of these United States, that his administration may be conducted in righteousness, and be eminently useful to Thy people over whom he presides; by encouraging due respect for virtue and religion; by a faithful execution of the laws in justice and mercy; and by restraining vice and immorality. Let the light of Thy divine wisdom direct the deliberations of Congress, and shine forth in all the proceedings and laws framed for our rule and government, so that they may tend to the preservation of peace, the promotion of national happiness, the increase of industry, sobriety, and useful knowledge; and may perpetuate to us the blessing of equal liberty.
We pray for his excellency, the governor of this state, for the members of the assembly, for all judges, magistrates, and other officers who are appointed to guard our political welfare, that they may be enabled, by Thy powerful protection, to discharge the duties of their respective stations with honesty and ability. We recommend likewise, to Thy unbounded mercy, all our brethren and fellow citizens throughout the United States, that they may be blessed in the knowledge and sanctified in the observance of Thy most holy law; that they may be preserved in union, and in that peace which the world cannot give; and after enjoying the blessings of this life, be admitted to those which are eternal.
Finally, we pray to Thee, O Lord of mercy, to remember the souls of Thy servants departed who are gone before us with the sign of faith and repose in the sleep of peace; the souls of our parents, relatives, and friends; of those who, when living, were members of this congregation, and particularly of such as are lately deceased; of all benefactors who, by their donations or legacies to this Church, witnessed their zeal for the decency of divine worship and proved their claim to our grateful and charitable remembrance. To these, O Lord, and to all that rest in Christ, grant, we beseech Thee, a place of refreshment, light, and everlasting peace, through the same Jesus Christ, Our Lord and Savior. Amen.
While not technically a formal part of the Catholic liturgy in the United States, its repetition by each congregation after Sunday Mass resulted in it being a critical part of the Sunday worship experience of Catholics throughout the country. This prayer helped to both express and reinforce the patriotic feelings of Catholics in the new Republic. This in turn helped to cement a commitment to patriotism within the Catholic Church in America, a strong patriotism that helped to countered slanderous allegations of dual loyalty hurled at Catholics by nativists and other anti-Catholics all the way up to the election of JFK to the presidency.

Saturday, November 28, 2015

The theological roots of religious liberty

Before any man can be considered as a member of Civil Society, he must be considered as a subject of the Governour of the Universe: And if a member of Civil Society, who enters into any subordinate Association, must always do it with a reservation of his duty to the General Authority; much more must every man who becomes a member of any particular Civil Society, do it with a saving of his allegiance to the Universal Sovereign.
We maintain therefore that in matters of Religion, no man's right is abridged by the institution of Civil Society and that Religion is wholly exempt from its cognizance. True it is, that no other rule exists, by which any question which may divide a Society, can be ultimately determined, but the will of the majority; but it is also true that the majority may trespass on the rights of the minority.
- James Madison (1751-1836), American Founding Father, Memorial and Remonstrance against Religious Assessments (1785).

Thursday, November 26, 2015

'Teaching Children About World Religions and Ethics Could Help Counter Islamophobia': A Response

After Paris, questions for us all
a response to 
Teaching Children About World Religions and Ethics Could Help Counter Islamophobia

Dr. O’Donnell tells us that teaching about world religions and ethics “might counter the risk of Islamophobia in Europe and the increased potential for discrimination that we are witnessing”. Simply put, one cannot “witness” either “risk” or “potential”. At best, such things can be inferred.

If Dr. O’Donnell means that adherents of Islam have experienced increased discrimination in the immediate wake of the Paris murders, then a few well documented examples of concrete significant injuries might be convincing.

But if instead, Dr. O’Donnell means only that, post-Paris, some of Islam’s adherents feel less comfortable with their neighbours, then, although such a regrettable situation has a claim on us as do all of society’s many ills, this is not the crisis which demands the community’s immediate attention. Why? Sometimes a minority subjectively experiences feelings of victimization because it has been actually injured by wider society. But this is not always the situation: sometimes the subjective experience of victimhood comes about, not for objective reasons, but only because the minority stereotypes its neighbours’ thinking. A considered judgment as to which is going on in our shared post-Paris Europe requires solid evidence.

Furthermore, Dr. O’Donnell downplays the potential benefits of the UK’s new counterterrorist legislation and programmes by pointing out that they are based upon a “discourse about radicalisation” supported by “scant empirical evidence”. But in regard to the educational reforms she proposes—i.e., teaching about world religions and ethics—she puts forward no empirical evidence at all. Instead, she only notes that her proposals “might” or “could” lead to benefits, and she asserts in a wholly conclusory fashion that such education is “part of a good education and part of understanding the human story.”

Likewise, Dr. O’Donnell never explains what she believes caused the Paris murders and similar past events or what she believes could counter the formation of the sort of personalities that display all too great a willingness to engage in murder and mayhem on a grand scale against civilian targets.

In fact, we all know that it is this very real possibility—the omnipresent depressing likelihood of future Paris-like attacks—which is the urgent crisis that demands our immediate attention and our best efforts. All our lives and our children’s lives depend on it. All know this, except Dr. O’Donnell. For her, the “urgent [matter is] to ensure that students and professionals do not resort to prejudicial judgments about others”. This is the sort of grand category error that the public has come to expect from a disconnected transnational, elitist, academic class: an academic class which sees tradition, loyalty, and patriotism as primitive, and whose promoters teach that nations, citizenship, borders, and law defined by elected parliaments are irksome problems to be overcome.


PS: My prior is post: Seth Barrett Tillman, My Ben Carson Days, The New Reform Club (Nov. 9, 2015, 9:01 AM),

Seth Barrett Tillman, ‘After Paris, questions for us all Irish Independent (Dublin, 26 November 2015), p.37, accessed 26 November 2015.

responding to 

Dr Aislinn O’Donnell, ‘Teaching Children About World Religions and Ethics Could Help Counter Islamophobia’ Irish Independent (Dublin, 20 November 2015), p.32, accessed 23 November 2015.

Twitter:  ( @SethBTillman )

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: My prior is post: Seth Barrett Tillman, Justice Jackson’s Biblical Metaphor in Youngstown, The New Reform Club (Nov. 5, 2015, 3:47 AM),

PPS: 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. 

PPPS: 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. 


Twitter:  ( @SethBTillman )

Seth Barrett Tillman, My Ben Carson Days,’ New Reform Club (Nov. 9, 2015, 9:01 AM), <>.

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.


PS: My prior post is: Seth Barrett Tillman, What Law Could Learn From Popper’s Model of Science, The New Reform Club (Nov. 4, 2015, 12:30 PM), 

Twitter:  ( @SethBTillman )

Seth Barrett Tillman, Justice Jackson’s Biblical Metaphor in Youngstown, New Reform Club (Nov. 5, 2015, 3:47 AM), <>; 

[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.


PS: Seth Barrett Tillman, The Decline of American Martial Culture—Flies of a Summer (Part III), New Reform Club (Oct. 23, 2015, 8:23 AM),

Twitter:  ( @SethBTillman )

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.