Mensch tracht, un Gott lacht

Monday, February 22, 2021

Courts and Qualifications for Elected Federal Positions


Walker v United States, 800 F.3d 720, 723–24 (6th Cir. 2020) (Roger, J.) (“Walker’s right to seek and hold public office has not been restored, because he was never deprived of that right to begin with. Neither Congress nor the states can add to the constitutional qualifications for holding federal elective office. Powell v. McCormack, 395 U.S. 486 (1969); U.S. Term Limits, Inc. v. Thornton, 514 U.S. (1995). Because the constitutional qualifications make no mention of convictions, under federal law, Walker could always run for and hold federal public office.” (emphasis added)); 

Gordon v. Secretary of State of N.J., 460 F. Supp. 1026, 1027 (D.N.J. 1978) (Biunno, J.) (“As a consequence, whether in jail or not, nothing prevented Gordon from seeking to gain the votes of enough electors to have been elected President of the United States . . . . Eugene V. Debs ran for President four times and was a candidate while in jail. Gordon was free to do the same.”); 

United State v. Richmond, 550 F. Supp. 605, 606 (E.D.N.Y. 1982) (Weinstein, C.J.) (holding that “plea agreement pertaining to resignation from Congress and withdrawal as a candidate for re-election are void.”); id. at 608 (“Just as Congress and the states are prohibited from interfering with the choice of the people for congressional office, federal prosecutors may not, directly or indirectly, subvert the people’s choice or deny them the opportunity to vote for any candidate.”); 

Seth Barrett Tillman, Courts and Qualifications for Elected Federal Positions, New Reform Club (Feb. 22, 2021, 8:54 AM), <>; 

Saturday, February 13, 2021

America Is a Christian Nation

A friend asked me to defend the claim in a prior post that American is a Christian nation. This was my response:  

* * * 

What is America? A few months back I asked this question, and answered: it depends. It depends on us. It depends on the choices we make at defining moments. 

It was not a real answer, of course. It was just a lot of throat clearing, working my way up to an answer. But here I will give you my answer to what America is. And I will answer it by first asking: 

What's left of it? 

In a very short space of time, we have lost much of the essence of the American political order. We have lost the presumption of the freedom of assembly, which is now subject to public health czars. We have lost the presumption of free speech, which is now subject to Silicon Valley algorithms. We have lost the presumption of a free press for the same reason (and because the press no longer sells news, it sells ads). 

We have lost the presumption of equal treatment of the laws, where endless federal investigations put outsiders in jail for "process crimes" and give insiders community service, and protect Wall Street insiders from Reddit outsiders. We have lost the presumption of warrantless searches, as our banks partner up with the government and offer up our papers voluntarily. 

We have lost the American value equality, and now find the president of the new order choking on it and replacing it in real time with a curious new word, equity; the contents of this replacement for one of our founding values to be supplied at a later time. 

We have lost the presumption of democratically administered elections, whose rules are now decided by people who never stand for election. The party who spent the last four years disputing the outcome of the prior election, having regained power in the most recent election, now promotes silencing those who doubt the outcome of elections – which amounts to some 47% of the country. Joe Biden's own party does not even recognize his leadership: to his call for "unity," the Democrats in Congress are pressing ahead with an unprecedented second impeachment of a private citizen already gone from office and returned to the outside world. Rather obvious to all is that the object of this spectacle is not one American citizen, but 74 million of them, pour encourager les autres. To all the other outsiders out there: don't challenge our power ever again. 

This is a grim state for America's political order. But what does it say about America? Because America is not the same thing as its political order. America is more than its government. We tend to overlook this because our government is such an extraordinary experiment, and so when asked what it means to be American, we often begin by talking about our political rights. Yes, the American government is extraordinary because it wrote down its own limits, and wrote down our rights. That government is (or, was) a very fine government. But a government is not a country. And the American political order is not America. 

I say again, the upheaval we are now witnessing is of America's political order. America itself, the American people, I mean, changed some time ago. Having deferred to experts and professional lawmakers and executives and bureaucrats for several generations now, we have been long out of practice of the habits of self-government. Those habits are, as we are now learning, a use-it-or-lose-it proposition. 

And it is habits that are decisive, not government, which is merely a set of tools, a piece of social technology. It was the habits of the English, whose children were trained as archers from a young age, that proved decisive in battles during the Hundred Years' War. The French knew of archery, of course. It was not a deficit of technology from which the French suffered but a deficit of habits: their boys did not grow up training as archers, building the skill and immense upper-body strength over more than a decade to harness the power and accuracy of the longbow. Instead, the French relied on the technological shortcut of the Italian crossbow, which proved far less effective than an English archer. 

Americans have lost the habits of democracy. We talk a good game about speech, but we have long since stopped having anything to say. We have long since stopped believing our press was on the level. I myself have wondered, for example, why other countries would not insist on having a First Amendment. But perhaps my counterparts in other countries may be asking: what do the Americans have to tell us, other than that they have the right to say it? 

But while the American political order is not America, the political order reflects America. We may not know what we think of ourselves, but we know what the political establishment thinks of us. This is why Americans are so fond of offering up the Constitution as their autobiography: the Constitution, in describing a deferential government, tells of a vigorous and determined American people. What does our vigorous and determined new political order tell us, but that it sees the American people as having become deferential? The story of the last quarter millennium in America is one of a reversal of roles. A people with nothing to say and no God to serve might not notice the sun setting on the First Amendment. 

I've no doubt that describes a large portion of America. But not all. No, not all Americans will snuff out their lights. Not all Americans will give up their vermilion ink. These Americans cannot find themselves reflected in a political order accommodated to a supine people. 

These Americans, I said – and now I am nearly finished clearing my throat – see the purpose of the American polity as guaranteeing "a space where we each could serve our neighbors, our families, and our God." For these Americans, I said, "America is a Christian nation, in its best and broadest sense of allowing every American the freedom and opportunity to serve God, or at a minimum not to interfere with their neighbors' freedom and opportunity to serve God." For these Americans, a people "must serve something higher than themselves, for there is no surer way to wreck our world than to put it under our own feet." 

America is a Christian nation, I said. 

And you ask me: Prove it. (More specifically, you asked, "[w]hat evidence/arguments do you propose to establish this?")

Asking me to prove America is a Christian nation is a good example of how our public discourse is wrecked. Your question suggests you are habituated to expect me to marshal citations to historians, sociologists, legal constitutional scholars, or such other experts as support for the claim. And no doubt such authorities may have interesting and probative things to say on the subject. (Mark David Hall and Daniel Dreisbach come to mind.) 

But your expectation is maligned. Not, I rush to clarify, that I would suggest your intentions are malign. But you have been trained to seek discord rather than understanding. This I say with regret, because through our correspondence I can see a light in you that does seek truth. But the evil of our time would extinguish such light under torrents of mere information, drowning all meaningful inquiry. 

Let me posit this: Citing experts and authoritative sources back and forth to each other is not debate. It is not even discussion. Rushing to put every claim to the proof is rather the problem with discourse in America today, for we rush to "debunk" and "fact check" every claim without ever first asking: What do you mean? 

For if you would take a moment to ponder what it means that I would claim that America is a Christian nation, it might have occurred to you that it is not the sort of claim I would presume to defend by citation, or by anything less than by my own example. My life will serve as my citation. And I will pray to God for the courage to prove it.  

This is a habit of liberal society that has been lost for a generation at least. And it will take a generation to get it back, assuming we still have a taste for it. 

One of the habits of a liberal society was captured in the great line, uttered by a not-so-great man, that we should ask not what your country can do for you, but what you can do for your country. In the ensuing half-century, sadly, a culture of consumption continued consuming America. And so when we ask what kind of country America is, we must first look out, dismally, as from Ozymandias' pedestal amid an expanse of waste, and ask, what is left?

When I said that America is a Christian nation, I was not making a historical claim (though there are historical authorities to support it). Nor a sociological claim (though such a claim also could fairly easily be supported). I was not even quite making a religious, certainly not a theological, claim. When I said America is a Christian nation, I was making something like a teleological claim: a claim about our purpose as a people. Here was my immediately preceding sentence: "The purpose of the American polity was to have a space where we each could serve our neighbors, our families, and our God." 

Experts try their best to answer such "why" questions. They can give social, political, economic, legal, demographic, and various and sundry other types of academic explanations why early settlers established American colonies, why the Americans fought for independence, etc. But I am not interested in those kinds of explanations. People may have come to America because it offered economic opportunity. Or tolerance. Or diversity. But these things were never the essence of America, or of any other nation: if a person loves a country because of its economic opportunity, or tolerance, or diversity, that person will betray that country for the next one comes along offering more opportunity, or tolerance, or diversity. 

What I am talking about are primary loyalties. Why would a person fight and die for America? Not, certainly, for any mere practical reasons. A merely rational man, said Chesterton, will not marry. A merely rational man will not fight. 

So my claim does not really depend on things like polls of how many Americans identify as Christians, which numbers continue to decline. Sadly, a growing number of Americans do not believe in anything, or they give nary a thought to what they believe, so occupied are they with cakes and bubbles of bliss that, if ever they do tire of their superficial luxuries, they are more prone to lash out and do something nasty, for we are habituated never to think of a loyalty higher than consumption. We as a nation may come to be defined by our ruined people, if indeed we persist in the endeavor, for it is never merely on the surface that we exist: either we soar into the heavens, or burrow into the depths. 

You see, the question might be turned round on you: if America is not a Christian nation, whatever else might it be? A merely industrious and wealthy nation? A merely powerful nation? A merely diverse nation? You cannot (Chesterton again) go clad in crimson and gold for this. 

We are told we are a nation founded on an idea. Probably I myself have repeated that at some point in the past. But on reflection, it is confusing, empty, and dangerous. Whatever those ideas are, we have not lived up to those ideas. No other nation has set up such a standard, after all. No other nation has crucified itself on a cross of its own ideals like America has. And yet we are told we still have not lived up to our ideals. Though no nation has bled itself for its ideals more than America has, our blood has not slaked the thirst of the idealists. 

And what may we call a nation founded on ideals who cannot achieve them? The ideals themselves appear as so much shifting sand. Having neared equality, the ideal in recent weeks has evanesced, and in its place, we find a new ideal: equity, a word without limits, without an object, without an end. A perfectly violent word. A word that will drain our blood to the last drop.  

This is because ideas are not transmissible. They exist only in the mind. They are solipsistic. Orwell's conclusion in 1984 is that a mere idea cannot live without flesh. That is why Christ made the Word flesh. Through himself he brought the Word into the world. What is a nation? A nation is an idea made flesh in its people, its land, its homes, its communities. It is Chesterton's response to what is civilization: why, we would not know where to begin, for it is everywhere we look. 

We become patriots by having compatriots. Hugh Hewitt said he asked Mark Zuckerberg if he was a patriot, and he scoffed, indignant, and boasted of all the help Facebook had given to the Department of Defense. The Department of Defense? Becoming a defense contractor does not make one a patriot. I am sure Zuckerberg thinks himself a patriot. Like many, he probably measures his patriotism by his commitment to a set of ideals. But a patriot is not measured by his own ideals. A patriot in his own mind is a maniac. One cannot be a patriot without compatriots. And a patriotism that takes checks from his compatriots has rather lost the thread.  

Besides, even having a lofty set of ideals, like the principle of equality, and principles of due process, and democracy, and natural rights, does not tell us anything. These are mere bylaws. They do not amount to an ethos. They do not tell us what kind of a people America is. They only tell us what kind of government America has. We do not fight and die for a government. We do not build monuments to ideas, but to people.

As a still young nation, it is not self-evident what kind of nation America is. "Everybody knows in their bones," wrote Thornton Wilder in his famous play Our Town, "that something is eternal, and that something has to do with human beings." What is eternal about America? Other nations and peoples have defined themselves over the course of centuries and even millennia. We can speak of traits being quintessentially Greek, or Persian, or English, or Chinese. America has not had enough epochs to demonstrate which of its traits will stand the test of time. 

"Patriotism," Enoch Powell said, "is to have a nation to die for; and to be glad to die for it – all the days of one's life." A quarter millennium ago, Americans found they had something to die for. What was it? Do we still have it?

This is our present struggle, and why I boast "we are a Christian nation": my boast is not historical, it is a battle cry: that there is something left to fight and die for. I mean by it what the English meant when they cried, "For Saint George!" A people must have something it will die for. The lack of something to die for is a vacuum that human nature abhors. And our country has been falling under the shadow of that void for some time, so that more and more Americans will not fight for their country, will not even leave their homes for their country (except, perhaps, on occasion, to set part of it on fire). 

How long have we lacked something to die for? Did Americans forget who they are, and are only just now recognizing it? No, I don't think so. I think people like me, effete desk-worker types, people who think the world needs to know their opinions, those people are the first to lose sense of who we are. But regular Americans never forget. Orwell said, our hope lies in the proles. They are the repository of our soul as a people, precisely because they never lost their old habits. So what roused our proles? Trump, of course, which is why he roused the hatred of the elites whose project it was to keep the proles sated and sedated. So more statues would have to come down. More buildings would have to be renamed. More books burned. More songs silenced. More speech censored. More thoughts criminalized. For the statists will not teach history, but they know history: they know the British had made a mistake by respecting the colonists' rights of Englishmen, and that this liberal impulse allowed the Americans' ideas to take flight and soar and assume among the powers of the earth the separate and equal station to which the laws of nature and of nature's God ... you know the thing. 

Or maybe you don't. There was no school last year, after all, at which to learn it. There was no Fourth of July last year at which to remember it. And there will be none this year. No, our modern elites will not make such a mistake as the 18th century British by letting ordinary people go around learning about things, and talking about things, and thinking about things, things that are worth living and dying for. Their model is not the British liberal response in the colonies. Their model is the Chinese Communist response in Tiananmen. 

Yet, there were different people facing those responses. Americans fought fiercely for independence against liberals. There are still some of those kinds of Americans left. And we have no reason to doubt they will fight vulgar 21st century statists any less fiercely than they fought genteel 18th century liberals.

Speaking of Independence Day, my wife and I help put on the annual Fourth of July Parade in Huntington Beach. (She puts it on: I get to drive her around on official business in the city golf cart.) It is the largest parade west of the Mississippi: that is what we tell people, and that is how we treat it. No one has called Guinness to report it as such. No one has bothered to definitively establish the accuracy of the statement. That is because it is not just another mere factoid, the kind journalists and experts vomit into the atmosphere already black with factoids, choking off all discussion. When we say our parade is the largest in the west, it is not a mere fact, it is a boast: we dare you to gainsay it. A mere fact you challenge by putting your sport jacket on and looking into the camera and blathering. A boast you challenge by taking your jacket off and stepping outside. This is a boast. Come at me, bro. 

That is what I mean when I say America is a Christian nation. My house will serve the Lord. My church will serve the Lord. I will not suffer anyone to gainsay it. And my country, well, what is my country but the curtilage of my home and my church? A country is merely the name for the space where our families and our compatriots move about, raise our children, worship God, and serve one another. There may be those who regard this country instead as the space where they move between their mixed-use zoning flat and their dance club, as the curtilage of their local mega-corpo-sponsored sports stadium, or of their local Planned Parenthood. 

But as the past year has shown, most of these sorts of people gave up their curtilage without a fight: they stayed in their homes, and still stay in their homes, indefinitely. They did not even insist on a discussion. Do you think I would let such people decide the fate of my country? 

So yes, America is a Christian nation. Come at me, bro. 

For Christ's sake, Kowal, but you are calling for a religious war! Let it not be so. Lord knows, as an effete desk-worker type, I do not want war at all. Surely not a sectarian war, for I mean my claim in the most ecumenical sense, desirous of the chance to fellowship with others who seek God's perfection in the beyond, if only we might avoid those flogging us to attain perfection here on earth. But our race has never quit of war. And if we must war, I do not regard religious causes as the worst of reasons. Surely there are worse things to die for. Surely it is worse to float along, Camus-like, held aloft on a wing of mere sensation. There is something worse than a bloody existence, and that is a bloodless one. Not that we are without a choice, but that none of our choices should be worth dying for. That we have already taken up an underground existence, where there is no fighting or dying except for survival. That we should have left behind the days of glory on the surface world, where we bled to reach the heavens. 

That is why I boast that America is a Christian nation. I will not submit to interrogatories on the point. A man will not be put to the proof on matters on which he would be put to the death. 

Democracy is too precious a thing to let the public get anywhere near

I was fulminating recently against the carefully orchestrated simulacrum of democracy that occurs in our Capitol building, along the lines of Mark Steyn's critique here, when my surprised interlocutor asked: was it really true that Congressional rules prohibit cameras from showing whether a given speechifying politician is actually speechifying to anybody? 
Is it really true that, in the "citadel of democracy," in the "light to the world," there are no other cameras allowed?

The camera issue is important now because House Speaker John Boehner (R-OH) recently turned down the latest request by C-SPAN Founder and CEO Brian Lamb to allow his company's cameras - or for that matter - the cameras of any other news organization, to televise what happens in the House chamber.

Lamb has pushed the issue since C-SPAN's inception. But he really went to the mat in 1995 when Republicans rode to power and promised more transparency. Then-House Speaker Newt Gingrich (R-GA) rejected Lamb's entreaty. And former House Speakers Dennis Hastert (R-IL) and Nancy Pelosi (D-CA) have followed suit when Lamb made similar requests at the beginning of their tenures.


Boehner responded to Lamb that he would maintain the "precedent set by former speakers" noting that "the dignity and decorum of the United States House of Representatives - are best served by the current system of televised proceedings provided by the House Recording Studio."

It's the House Recording Studio that literally calls the shots of what people will see when telecasting House sessions.

During his speakership 16 years ago, Newt Gingrich denied C-SPAN's request for complete access. But he did instruct the House Recording Studio to start providing cutaway shots of activity throughout the House chamber. That experiment lasted about a week as the House feed showed lawmakers dozing, goofing off and reading. Callers then lit up the Capitol switchboard as they phoned to admonish their lawmakers for not showing respect to the speaker or accusing them of sloughing off on the taxpayer's dime.

The lawmakers then complained to Gingrich who hastily halted the exercise.
But if not through the camera's eye, at least we may visit "the People's House" and see the workings of democracy with our own eyes. 

Oh, wait. Hold off on that just now. I see the People's House is closed to the people: 

Might check back later. 

On further thought, don't bother: "The enemy is within the House of Representatives," said the Speaker of the House recently. For once, she is right. If only that possibly-permanent fence now being built around the Capitol would protect America from what lies within that House of horror. 

But this is how the people inside the Capitol see democracy: Democracy is too precious a thing to let the people get anywhere near. The people may not visit the Capitol. The people may not see the Capitol, except through chain-linked fence. The people may not even watch what happens inside the Capitol on TV, except for tightly orchestrated frames around the face currently bloviating. Lawmaking, like the rest of news, is just poor-quality entertainment.

But if you would like to know more about our democracy, Amazon is happy to provide you with a copy of this collection of professionally produced, instructional videos, from the people who canceled Gina Carano. For a fee, of course:


Thursday, February 11, 2021

Jesus and the Syrophoenecian Woman: Failing to Rise to Our Highest Ideals

Every year about this time, the story of Jesus and the Syrophoenecian woman appears in the Catholic lectionary. It is a jarring story. In it, Jesus is not egalitarian. In his speech to the Syrophoenecian woman, Jesus does not meet modern expectations of fair and equal treatment, he does not celebrate diversity. In fact, if we are going to be strictly modern about things, when Jesus calls the woman a "dog" he proves himself to be, let's be honest, a racist hate criminal. 

Here is the story of Jesus and the Syrophoenecian woman. You have been warned: 

Gospel Mk 7:24-30

Jesus went to the district of Tyre.
He entered a house and wanted no one to know about it,
but he could not escape notice.
Soon a woman whose daughter had an unclean spirit heard about him.
She came and fell at his feet.
The woman was a Greek, a Syrophoenician by birth,
and she begged him to drive the demon out of her daughter.
He said to her, “Let the children be fed first.
For it is not right to take the food of the children
and throw it to the dogs.”
She replied and said to him,
“Lord, even the dogs under the table eat the children’s scraps.”
Then he said to her, “For saying this, you may go.
The demon has gone out of your daughter.”
When the woman went home, she found the child lying in bed
and the demon gone.
I am sorry to have to expose the savior of the world as just another deplorable, but such is the calling of a self-righteous age. 
But what could this story mean? As I mentioned, this story has appeared in the lectionary before, appearing right around this time of year. So I went back a couple of years in my journal. In 2019 when I had reflected on the story, I had a different kind of reaction. Perhaps it is because I had not yet attained the higher altitudes of our ideals. My mind had not yet expanded, my head had not yet split, I had not yet devoured the heavens. I offer up here what I wrote, unedited except for typos:

2/14/19. What does this mean? Jesus really was going to deny this woman and her child his help because she was not Jewish? Did he know she was going to say this? I think not. I don't think (?) he was omniscient while on earth (I think all this was from the Father, and his closeness with the Father gave him great power and understanding, but not exact identity, not all power and not all knowledge in any given moment.) Maybe this is an insight into how Jesus saw his own limitations. He knew he could not alleviate all suffering for all people during his time. He had to focus on the Jews, to fulfill God's covenant with them, and then his grace would be displayed to the whole world. But in that moment, the woman's faith proved to Jesus... something. What? That her child could be saved? No, he could have saved her with a word regardless of her faith. That saving her child would not be pearls before swine? Jesus could have healed all sickness, cured all disease, but he didn't. Why? Because he is a sadist? Of course not. Because wellness in this world was not his mission. Man is fallen, that is the story of Genesis. Our bodies slouch toward death, our minds toward the ditch. The law proves we are none of us fit to bear it. The point is humility. We must be humble before God can save us. What a powerful image this story becomes! Jesus would have to leave this woman and her daughter unhelped, his whole mission on earth to finish the story about how man's pride would take him all the way to murdering God himself, and how even then God could forgive if only man would humble himself. When the woman showed her humility, all this became unnecessary to save her: her humility opened the way for faith, and her faith saved her and her daughter. 
That was 2019. Just two years ago I was justifying Jesus's hateful statements! But now we know better. We do not want humility. We demand purity. And on that score, giving up one's life for his friends didn't help Lincoln, and it doesn't help you, either, Jesus. 

It gives me no joy to say this, but I must deem Jesus's legacy as: Problematic.

Monday, February 08, 2021

Joseph Story’s Commentaries on the Constitution: Late Impeachment and Other Unresolved Impeachment-Related Issues



The discussion he puts forward “is not intended to express any opinion in these commentaries, as to which is the true exposition of the [C]onstitution, on the points above stated [including late impeachment]. They are brought before the learned reader, as matters still sub judice, the final decision of which may be reasonably left to the high tribunal, constituting the court of impeachment, when the occasion shall arise.

Seth Barrett Tillman, Joseph Story’s Commentaries on the Constitution: Late Impeachment and Other Unresolved Impeachment-Related Issues, New Reform Club (Feb. 8, 2021, 11:07 AM), <>;