Constitutional Interpretation and the Standard Originalist Narrative

One of the most frustrating things about participating in debate about the meaning of the Constitution is dealing with the standard originalist narrative (“SON”). The SON is powerful. A good part of its power lies in the fact that those who are under its spell have never considered its correctness. Alternatively, if they continue to adhere to the SON after having considered its correctness, there are many who nevertheless fail to let their readers know that the narrative is contested. Debate takes place infrequently if at all. Only one voice is regularly heard. The counter-position is a voice confined to the margins of academia and to the margins of high culture (including high judicial culture).

Let me give you my favourite example. You will find repeated statements in judicial opinions and academic articles (in law and other fields) to the effect that oaths (or affirmations) were central to the Framers’ constitutional vision. So central, in fact, that all government officials, federal and state, are required by the text of the Constitution to take an oath (or affirmation) to support the Constitution. See, e.g., Eakin v. Raub, 12 Serg. & Rawle 330, 353 (Pa. 1825) (Gibson, J., dissenting) (“The oath to support the constitution is not peculiar to the judges, but is taken indiscriminately by every officer of the government, and is designed rather as a test of the political principles of the man, than to bind the officer in the discharge of his duty . . . .”); Michael Stokes Paulsen, The Constitution of Necessity, 79 Notre Dame L. Rev. 1257, 1261 (2004) (describing the Article VI oath as “universal” and applying to “all federal and state officers”); Diana Schaub, Dysfunction Is No Excuse for Misreading the Constitution, Library of Law & Liberty (Oct. 9, 2015),  (“A non-member Speaker would be the only office-holder in our system not bound by [the Article VI] oath.” (emphasis added)); see also, e.g., Paul Horwitz, Honor’s Constitutional Moment: The Oath and Presidential Transitions, 103 Nw. U. L. Rev. 1067, 1069 (2009) (“Under Article VI of the Constitution, every federal and state officer takes an oath or affirmation to ‘support this Constitution.’” (citing Article VI, Clause 3) (emphasis in the original)); Michael Stokes Paulsen, Does the Constitution Prescribe Rules for Its Own Interpretation?, 103 Nw. U. L. Rev. 857, 920 (2009) (“It is ‘this Constitution’—a specific written text—that all officers of government swear to support and to be bound by, according to its written terms.” (emphasis added)); Judge William H. Pryor, Jr., The Religious Faith and Judicial Duty of an American Catholic Judge, 24 Yale L. & Pol’y Rev. 347, 350 (2006) (“The Framers required in Article VI of the Constitution that all the officers of our government, including judges, ‘be bound by oath or affirmation, to support th[e] Constitution.’” (emphasis added)).

As evidence, the SON's true believers quote Article VI, Clause 3 which states:

The Senators and Representatives . . . and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States.

There is an interpretive puzzle here. Why does the Religious Test Clause (“RTC”) (in bold) so radically depart from the language of the immediate prior clause, i.e., the Oaths and Affirmations Clause (“OAC”) (in italics)? If both clauses, as the dominant paradigms teach, extend to all federal positions, then why does not the latter clause read:

“No religious test shall ever be required as a qualification to any federal position listed in the immediate prior clause.”

or

“No religious test shall ever be required as a qualification in relation to the position of Senator and Representative, and all executive and judicial officers of the United States.”

Why the changed language? We do not usually suppose that neighbouring text—in the very same sentence—which varies has identical meaning. Rather, different language implies different meaning. So the two clauses probably do not both extend to all federal positions. It seems to follow that only one of the two clauses may have that meaning (i.e., extending to all federal positions) and that the other clause reaches only a subset of all federal positions. If only one clause could reach all federal positions, is not the better choice the RTC? Can we come up with any likely choice of a federal position which the Framers would have willingly extended a religious test to? In fact, during ratification, was it not pellucidly clear that the RTC reached any and all federal positions?

If the RTC reaches all federal positions, then the OAC does not. What federal positions, if any, were left out and beyond the reach of the OAC?

Again, this is a puzzle, but it is not a difficult one. The OAC’s “judicial officer” language includes the federal judges at every level and their staffs (e.g., the clerks of the courts). The “executive officers” language includes the President’s subordinates (e.g., the cabinet), and the President’s oath is separately provided for in Article II. But when it comes to Congress, the OAC only includes elected officials, e.g., Senators and Representatives. Non-member congressional staff (e.g., Clerk of the House and Secretary of the Senate) are not included. See, e.g., Steven G. Calabresi, Response, The Political Question of Presidential Succession, 48 Stan. L. Rev. 155, 162 (1995) (“No constitutional oath is required of [non-member subordinate] legislative officers, like the Clerk of the House or the Secretary of the Senate . . . .”). We could have a conversation about why these congressional positions were left out. I have some theories on this matter, but we do not need to have that conversation because the text is clear.

But the problem goes deeper. It is not just congressional staff which are beyond the aegis of this OAC.

Consider these elected positions: (1) presidential electors; (2) elected territorial officials (including the members of its legislature); (3) elected national constitutional convention members meeting under the authority of Article V for the purpose of proposing amendments to the federal constitution; (4) elected state constitutional convention members meeting under the authority of Article V for the purpose of ratifying or rejecting proposed amendments to the federal constitution; (5) elected state (or territorial) constitutional convention members meeting under the authority of a state (or territorial) constitution for the purpose of amending the state (or territorial) constitution; and, (6) the Vice President of the United States (albeit, this has been and remains a matter of debate). Why? All elected positions are beyond the scope of Article VI's “officer of the United States” language. See United States v. Mouat, 124 U.S. 303, 307 (1888) (Miller, J.) (“Unless a person in the service of the Government, therefore holds his place by virtue of an appointment by the President, or of one of the courts of justice or heads of Departments authorized by law to make such an appointment, he is not strictly speaking, an officer of the United States.” (emphasis added)).

Consider these appointed positions: (1) all House, Senate, and congressional staff (e.g., Clerk of the House, Secretary of the Senate, sergeants at arms of each house, door keepers of each house, the Architect of the Capitol, and members’ chiefs of staff); (2) advisors to the President—even those situated in the White House—who lack individualized legal discretion or power to affect binding legal relations; (3) territorial officers appointed by elected nonjudicial territorial officials; (4) American nominees or appointees to treaty-created offices; (5) multistate compact officials; (6) holders of letters of marque and reprisal; and, (7) trustees, directors, members, and officers (and, perhaps, employees, and other agents) of federally chartered trusts, corporations, and other private entities with legal personality.

Other positions beyond the scope of the OAC include: (1) voters in federal elections; (2) jurors on federal juries (and federal grand juries); (3) attorneys admitted to practice before the bar of a federal court; (4) enlisted federal (or state) military personnel (including the modern National Guard); (5) permanent or ad hoc federal civil servants; (6) federal contractors (including private jailors); (7) qui tam plaintiffs asserting a federal cause of action in a federal forum; (8) individuals affiliated with private entities created under state (or federal, or even foreign) law in which significant equity (or, possibly, debt) is held by the United States government; (9) individuals serving in an ad hoc common law posse comitatus under a United States marshal or under a United States attorney (or under a state or territorial Executive Branch official where federal law or a federal writ is being enforced); and, (10) individuals serving in private bodies authorized by federal law to create codes of conduct for members, to adjudicate disputes involving members, and/or to enforce such codes in proceedings involving members (albeit the constitutionality of such delegations to private bodies has been and remains contested).[1]

To the extent these functionaries are subject to an oath to uphold the Constitution, it is because of a statute, not because of Article VI. Moreover, where such an oath is imposed, it is imposed wholly at the discretion of Congress—these oaths are not mandatory in the sense that they are constitutionally commanded.

But the standard originalist narrative survives.

Seth Barrett Tillman

PS: My prior post is: Seth Barrett Tillman, Teaching the History of the American Civil War: Flies of a Summer (Part II), The New Reform Club (Oct. 9, 2015, 4:01 AM), http://reformclub.blogspot.ie/2015/10/teaching-history-of-american-civil-war.html

PPS: If you liked this post, you may also want to read: A Non-member Speaker, the Debate, and its Lessons, The Originalism Blog (October 12, 2015, 6:04 AM). 

Twitter: https://twitter.com/SethBTillman  ( @SethBTillman )

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[1] If you think I have missed some category of public or quasi-public functionary which is outside the ambit of Article VI, do write me and let me know what I missed. (sbarrettillman at yahoo.com) 

Jack Kennedy didn't run on his Catholic faith, but away from it

CHUCK TODD: Should a president's faith matter? Should your faith matter to voters?

DR. BEN CARSON: Well, I guess it depends on what that faith is. If it's inconsistent with the values and principles of America, then of course it should matter. But if it fits within the realm of America and consistent with the Constitution, no problem.

CHUCK TODD: So do you believe that Islam is consistent with the Constitution?

DR. BEN CARSON: No, I don't, I do not.

CHUCK TODD: So you--

DR. BEN CARSON: I would not advocate that we put a Muslim in charge of this nation. I absolutely would not agree with that.

Well, of course that depends on what we mean by "Muslim," just as in 1960 when Jack Kennedy was running, what we mean by "Catholic." In a famous face-down with 400 years of the great American tradition of anti-Catholicism, and now face-to-face with some 300 skeptical Protestant preachers, Kennedy affirmed he wouldn't let his church get in the way of the American state, and on that level, the literal separation of church and state is hardly controversial.

Which brings us to Denver [now Philadelphia] Archbishop Charles J. Chaput's 2010 remarks on JFK's electoral tactic some 50 years before:

After offering caveats about his remarks, Archbishop Chaput emphasized the need for ecumenism and dialogue based on truth as opposed to superficial niceties. He then remarked, “We also urgently owe each other solidarity and support in dealing with a culture that increasingly derides religious faith in general and the Christian faith in particular.”

During his talk, the archbishop noted that there are currently “more Catholics in national public office” than there ever have been in American history.

“But,” he continued, “I wonder if we’ve ever had fewer of them who can coherently explain how their faith informs their work, or who even feel obligated to try. The life of our country is no more 'Catholic' or 'Christian' than it was 100 years ago. In fact it's arguably less so.”

One of the reasons why this problem exists, he explained, is that too many Christian individuals, Protestant and Catholic alike, live their faith as if it were “private idiosyncrasy” which they try to prevent from becoming a “public nuisance.”

Recounting the historical context that led to the current state of affairs, Archbishop Chaput referred to a speech that the late John F. Kennedy made while running for president in 1960 which greatly affected the modern relationship between religion and American politics. At his speech almost fifty years ago, President Kennedy had the arduous task of convincing 300 uneasy Protestant ministers in a Houston address that his Catholic faith would not impede his ability to lead the country. Successful in his attempt, “Kennedy convinced the country, if not the ministers, and went on to be elected,” he recalled.

“And his speech left a lasting mark on American politics,” the prelate added.

“And he wasn’t merely 'wrong,'” the archbishop continued. “His Houston remarks profoundly undermined the place not just of Catholics, but of all religious believers, in America’s public life and political conversation. Today, half a century later, we’re paying for the damage.”

“To his credit,” he noted, “Kennedy said that if his duties as President should 'ever require me to violate my conscience or violate the national interest, I would resign the office.' He also warned that he would not 'disavow my views or my church in order to win this election.'”

“But in its effect, the Houston speech did exactly that. It began the project of walling religion away from the process of governance in a new and aggressive way. It also divided a person’s private beliefs from his or her public duties. And it set 'the national interest' over and against 'outside religious pressures or dictates.'”

Archbishop Chaput then clarified that although “John Kennedy didn’t create the trends in American life that I’ve described,” his speech “clearly fed them.”

So yes, in this enlightened 21st century, any Muslim whose character and actions are indistinguishable from any non-Muslim's should be no less acceptable or rejectable than any other random fellow off the street.  But perhaps because since Ben Carson apparently takes his faith and religion seriously, he was extending the same consideration to our Muslim-in-theory here.

As Archbishop Chaput noted, there are currently “more Catholics in national public office” than there ever have been in American history. American Catholics established a century-long record of trustworthiness and fidelity to the Constitution. We have barely a handful of Muslims in public office now, and I'd imagine fewer than 100 in all of American history on any level, national, state or even local.

I admire the Jehovah's Witnesses, who live their faith in a way that few other American Christians do. The JW's were at the forefront of groundbreaking constitutional litigation in the 1930s and 40s, and "mainstream" Christians today owe a lot to them on the religious freedom front.

Like the Amish, though, JW's don't really run for office, so it's hard to tell what would happen if you turned your city council over to their control. So too, if the subject group were JW's or Amish or Scientologists or young-earth creationists or New Agers or whathaveyous, it's highly questionable whether Ben Carson's attackers would blithely pull the lever without a serious JFK-style shakedown.

That's all Ben Carson was trying to say, I reckon, and had it been an actual discussion and not a pseudo-journalistic ambush by NBC's Chuck Todd [which hey, it's Todd's job], Carson might have been able to make that clear.

Jack Kennedy didn't run on his Catholic faith, but away from it. If an American Muslim wants to copy Jack's act, well, ironically he's probably not going to get Ben Carson's vote that way either.

Greenland's Norse were killed off by global cooling

"A cold snap in Greenland in the 12th century may help explain why Viking settlers vanished from the island."  That according to this Reuters story: Greenland cold snap linked to Viking disappearance.  Norse settlements in Greenland were remarkably advanced, and were developed enough that there was a regular Catholic bishopric established on the island in the village of Gardar in 1124.

The Reuters article attempts to turn the story of the end of the Greenland Vikings into a cautionary tale about global warming, which appears to be a bit of a stretch.  If anything, global warming would have been a huge help to the Norse of Greenland. Instead, the unfortunate Norsemen were hit with a long spell of global cooling. This made not only their economic connections with Europe more tenuous, it made their survival on the island more and more difficult as the terrain become more and more inhospitable.

Here's a link to a documentary on the Norse civilization of Greenland and its disappearance after nearly 500 years:

 

John Adams on the Puritan contribution to liberty

John Adams (1735-1826) wasn't just a politician, but also had a long career as a political theorist and commentator, a career that pre-dated the American Revolution by over two decades. And in his work as a theorist and commentator, Adams addressed the Puritan contribution to human liberty. Interestingly enough, Adams's religious views do do not fit within the mould of orthodox Protestants. That being the case, it is noteworthy that in his early work Adams had a very high regard for those most orthodox of Calvinists, the Puritan fathers of New England.

In A Dissertation on the Canon and Feudal Law, written in 1765 (circa the time of the French and Indian War), Adams wrote as a subject of the British crown and a patriot of the Empire. He begins his discussion of the Puritans in that text by noting that the Puritans were seen as "enthusiastical, superstitious, and republican" by many of the proper people of Adams's day. Adams strongly attacks such views of the Puritans, stating that they were "grossly injurious and false." The Puritans, Adams contends, were no more enthusiasts than the other sects within the Christian religion, and that their religious fervor, while a "noble infirmity," was also a source of strength for the group: "far from being a reproach to them," Adams wrote, their devotion "was greatly to their honor." Adams then goes on to describe how the Puritans sought to fuse reason and religion, a commitment to biblical faith with the prudential considerations of practical men. "Human and benevolent principles," Adams wrote, were the basis of Puritan policy.

While modern readers and scholars might object to Adams's characterization of motivations of the Puritans, Adams saw in the Puritans a resolute commitment to fight "Tyranny in every form, and shape, and appearance." The Puritans were willing to face punishment and even death rather than to compromise their beliefs. Their convictions serve, Adams' contends, as an example of "steady, manly, pertinacious spirit." As noted above, at the time he wrote A Dissertation, Adams was still a loyal monarchist and he went out of his way to note that the Puritans, despite their resistance to certaion policies of the British kings, were not foes of the monarchy. They rather sought a balanced government, with proper checks on the authority of both the king & the church. "[T]hey saw clearly, that popular powers must be placed as a guard a control, a balance, to the powers of the monarch and the priest, in every government, or else it would soon become the man of sin, the whore of Babylon, the mystery of iniquity, a great and detestable system of fraud, violence, and usurpation."

The Puritan commitment was to limited government, not to any one particular form of it. And the reason for their commitment to limited government was grounded in their ultimately religious view that human nature is such to render a limitless government a mechanism of tyranny. The Puritans had a strong commitment to secular reform & an even stronger commitment to religious renewal, so much so that Adams characterizes ecclesiastical reform as "[t]heir greatest concern." For them, secular & religious reform were not separate & distinct, but built off each other. Thus, the Puritans sought, according to Adams, to live in a state that upheld "the dignity of human nature." This two-fold commitment lead the Puritans to seek thoroughgoing reform of both secular and ecclesiastical institutions, removing "feudal inequalities and dependencies as could be spared."

Undergirding all this, as Adams notes, was the Puritan hostility to the Catholic religion, with its rituals & its ecclesiastical doctrines. The idea of a priest, Adams writes, was one which "no mortal could deserve, and as always must, from the constitution of human nature, be dangerous in society." Thus, the Puritans sought to purge the Protestant church of the vestiges of Catholicism, to preserve the spiritual & secular liberty that they saw due to every man. Instead of a priesthood, Adams contents the Puritans looked to establish ministry "on the foundation of the Bible and common sense." In doing so, the Puritans stressed, in Adams's account, the characteristics of "industry, virtue, piety, and learning." This had the effect of creating a people who were far more "independent on the civil powers" than those who lived in "a scale of subordination, from a pope down to priests and friars and confessors -- necessarily and essentially a sordid, stupid, and wretched herd." That the church of England continued, in modified form, to uphold the same system of subordination earned it the same disdain from the Puritans & Adams alike.

With Adams's early presentation of the Puritans, one sees the blossoming of "the Puritan myth" in American history. While much of his analysis may be disputed in light of modern scholarship, Adams's overview encapsulates what was to become the dominant view of the Puritans in the early American Republic. And there is little doubt that the Puritan refusal to compromise principle when faced with the demands of unlimited government did much to inspire the American patriots in the time prior to, during and immediately after the break with the British Empire.

[Edited from a post I originally wrote for American Creation.]

Teaching the History of the American Civil War: Flies of a Summer (Part II)

Which of these three statements is the most egregious?

American History -- Part 110 -- Lincoln -- Lee surrenders at Appomattox, The Making of a Nation—American history in Voice of America Special English [YouTube]

#1: Id. at 2:06ff “But [Lee] failed [to break the ring of Union soldiers surrounding his army]. Nothing was left. Nothing but surrender. Lee sent a note to General Grant asking to meet with him to discuss surrender terms.”

#2: Id. at 11:48ff “General Grant left Appomattox Court House to return to his headquarters a few kilometers away.”  

American History -- Part 113 -- A Johnson -- War Officially over, The Making of a Nation—American history in Voice of America Special English [YouTube] 

#3: Id. at 12:00ff “There was also the question of the 4,000,000 former slaves. They were free now. But few could take care of themselves. They needed jobs and training.”

Seth Barrett Tillman

Twitter: https://twitter.com/SethBTillman  ( @SethBTillman )

PS: My prior post is: Seth Barrett Tillman, The Veil: Tolkien, Rowling, and the American Civil War, The New Reform Club (Oct. 6, 2015, 4:58 PM), http://reformclub.blogspot.ie/2015/10/the-veil.html

PPS: I have a paper which, among other things, discusses errors in Civil War era historiography. See Seth Barrett Tillman, Ex parte Merryman: Myth, History, and Scholarship, Military Law Review (forthcoming circa Summer 2016) (peer reviewed), available at http://ssrn.com/abstract=2646888.

PPPS: Seth Barrett Tillman, The Decline of American Martial Culture—Flies of a Summer (Part III), The New Reform Club (Oct. 23, 2015, 8:23 AM), http://reformclub.blogspot.ie/2015/10/the-decline-of-american-martial.html;

and,

Seth Barrett Tillman, American Culture: The Flies of a Summer (Part I), The New Reform Club (Sept. 29, 2015, 6:33 PM), http://reformclub.blogspot.ie/2015/09/american-culture-flies-of-summer.html. 

The Veil: Tolkien, Rowling, and the American Civil War

He heard whisperings of things beyond the vail, and with smiles upon his face passed on to the land of eternal freedom. 

—Fernando G. Cartland, Southern Heroes: The Friends in War Time (Cambridge, Riverside Press 1895) (note: “vail” is obsolete for “veil”). 

[E]ither in his dreams or out of them, he could not tell which, Frodo heard a sweet singing running in his mind: a song that seemed to come like a pale light behind a grey rain-curtain, and growing stronger to turn the veil all to glass and silver, until at last it was rolled back, and a far green country opened before him under a swift sunrise. 

—1 J.R.R. Tolkien, The Fellowship of the Ring, in The Lord of the Rings (1954).

[Harry] had just heard something. There were faint whispering, murmuring noises coming from the other side of the veil. 

‘What are you saying’ he said, very loudly, so that his words echoed all around the stone benches.    

     . . . .  

‘Oh come on. You heard them, just beyond the veil, didn’t you?’ [said Luna] 

‘You mean ... [?]’ [said Harry] 

‘In that room with the archway. They were just lurking out of sight, that’s all. You heard them.’ [said Luna] 

—5 J.K. Rowling, Harry Potter and the Order of the Phoenix, in The Harry Potter Series (2003).

Seth Barrett Tillman

Twitter: https://twitter.com/SethBTillman  ( @SethBTillman )

 

PS: My prior post is: Seth Barrett Tillman, Beautiful English Prose and the Reigning Literary Zeitgeist, The New Reform Club (Oct. 1, 2015, 6:52 AM), http://reformclub.blogspot.ie/2015/10/beautiful-english-prose-and-some-self.html 

Catholic social teaching needs to be lived and understood in the Church

Building on Tom's post from yesterday, here's a link to a call for a greater appreciation and integration of Catholic social teaching in the life of the Church, posted a good bit ago over at The Western Confucian: Inculturating Catholic Social Teaching. One of the problems with the way Catholic social teaching is commonly discussed is that it almost always gets simplified along the lines of standard statist interventionism in the economy.  Catholic social teaching is far more sophisticated than that, dealing with the interplay of both state action & private property within the context of the overarching values of solidarity between people, the need to pursue the common good, and the practice of subsidiarity within levels of government. This sophisticated approach to the Catholic way of thinking about political & legal questions, grounded deeply in Thomistic thought, gets lost too much of the time. That's a real shame.

As Br. Charles over at A Minor Friar has pointed out, there's another negative consequence to misunderstanding Catholic social thought: a separation between social justice and evangelization. Catholic social teaching is part of the Church's broader message about redemption and the reconciliation between God and man brought about through Jesus Christ. Br. Charles writes:

There is a sense that we have our faith, we celebrate it at the Eucharist, and then we are called to go out into the world and work for justice. This is true as far as it goes, but I think we sometimes forget that the love of God and the Eucharist are themselves the social program par excellence. Yes, goods like a living wage, honest work, and access to health care and education are all things we should work for on behalf of those who need them, but in the end the old cliche holds: Jesus is the answer. In other words, we are good at remembering that we are called to struggle against social injustice, but because the world tells us to keep our religion to ourselves, we conveniently forget that God himself is the remedy for the ills of society.

That's exactly right.  The struggle for proper order in society must involve the preaching of the Gospel, because ultimately the only deep answer to the problems of this earthly sojourn are found in God's revelation of himself through his Son Jesus Christ.  As Christians, our concern for others is rooted in the love of God that we have been shown through Jesus Christ.  As St. John tells us, "The command we have from Christ is blunt: loving God includes loving people. You've got to love both" (1 John 4:21, The Message translation).  The reason Christians love & care for people is because of the love they have for God, a love which is itself a gift from God manifested in the Gospel. To quote St. John once again, "We love because he first loved us" (1 John 4:19, New American Bible translation). Once that truth is obscured, work for justice becomes divorced from faith in Christ, and a meaningful commitment to Catholic social teaching becomes impossible.

A spiritual life in Christ is a necessary component to Catholic social teaching.  They are linked . And it is from the spiritual life, which comes from God and is oriented to him, that Catholic social teaching gains its power. As Bl. Oscar Romero put it:

When we struggle for human rights, for freedom, for dignity, when we feel that it is a ministry of the church to concern itself for those who are hungry, for those who have no schools, for those who are deprived, we are not departing from God’s promise. He comes to free us from sin, and the church knows that sin’s consequences are all such injustices and abuses. The church knows it is saving the world when it undertakes to speak also of such things.

¡Bl. Oscar Romero, ruega por nosotros!

To Francis & Bernie re Catholic Social Teaching: Pope Leo on Why Socialism Sucks

Nowhere in the Bible will you find Jesus say

"Go thou to the rich man's house, take his stuff and give it to those who have less."

Long after Pope Francis's musings on global warming and capitalism [as he understands it] are likely obviated and forgotten, Pope Leo's XIII's bedrock Rerum Novarum, "of revolutionary change," (1891), written as the dust and smoke and dirt and noise and grime of the great Industrial Revolution finally began to settle, will likely continue to stand as the bedrock of modern Catholic social thought.  

Center-left organs such as Time magazine have taken a shine to the Catholic Church of late, that Francis is just a continuation of Catholic social science's congeniality to the modern progressive welfare state. But this is not so. Leo. 100 years later, it's eerily prophetic:

The door would be thrown open to envy, to mutual invective, and to discord; the sources of wealth themselves would run dry, for no one would have any interest in exerting his talents or his industry; and that ideal equality about which they entertain pleasant dreams would be in reality the leveling down of all to a like condition of misery and degradation…

Socialists may in that intent do their utmost, but all striving against nature is in vain. There naturally exist among mankind manifold differences of the most important kind; people differ in capacity, skill, health, strength; and unequal fortune is a necessary result of unequal condition. Such unequality is far from being disadvantageous either to individuals or to the community. Social and public life can only be maintained by means of various kinds of capacity for business and the playing of many parts; and each man, as a rule, chooses the part which suits his own peculiar domestic condition… 

But although all citizens, without exception, can and ought to contribute to that common good in which individuals share so advantageously to themselves, yet it should not be supposed that all can contribute in the like way and to the same extent. No matter what changes may occur in forms of government, there will ever be differences and inequalities of condition in the State. Society cannot exist or be conceived of without them… 

[N]either justice nor the common good allows any individual to seize upon that which belongs to another, or, under the futile and shallow pretext of equality, to lay violent hands on other people's possessions.

This is "conservatism" of the sort practiced around here, BTW, although we prefer the term "classical liberalism." Leo was a Thomist, after all.

[Bernie Sanders is not.]

HT: Ed Feser. Read the whole thing.

Champagne Socialism: Elton John on John Lennon

 

Via The Daily Mail:

By now Lennon was the head of a property empire and owner of a prize herd of Holstein cattle, a collection of Ancient Egyptian relics and an original Renoir painting. His wife worked at a desk inlaid with gold.

During this period, Lennon was often portrayed as a recluse, but in fact the couple were surrounded by assistants, psychics, tarot readers, masseurs, maids, acupuncturists and odd-job people, as well as one man whose sole job was to polish the apartment's brass doorknobs.

Some visitors were struck by the contrast between his millionaire lifestyle and the sentiments of his most famous song. Elton John was astounded to discover that Yoko had a specially refrigerated room just for her fur coats.

In 1980, to mark Lennon's 40th birthday, Elton sent him a little verse:

Imagine six apartments

It isn't hard to do 

One is full of fur coats 

The other's full of shoes

An older friend, the Beatles' former personal assistant Neil Aspinall, once heard Lennon moaning about the costs of running his business empire. 'Imagine no possessions, John,' Aspinall said. Lennon glared back. 'It's only a bloody song,' he said.

The [New] Reform Club, past and present

(L to R) George Bernard Shaw, Hilaire Belloc, GK Chesterton, 1928.

It will not do to paper over the fundamentals.

Every society reaches a point where it must examine its principles and choose whether to recommit to them or toss 'em out for new ones. Although in 2015 it gets clearer every day that Western Civilization has reached that point, the question of the Crisis of the West was brought into exquisite focus 100 years ago by a group of British gentlemen who called themselves The Reform Club.

Orthodoxy or modernity? That's the tension lying behind almost every issue of our times, and to recognize that is the first step to understanding not only our times, but our society, our own lives, and the human condition.

In 1928, that great champion of orthodoxy GK Chesterton debated his existential enemy, the modernist George Bernard Shaw (with Hilaire Belloc as moderator), on how our society should order itself economically. It took me half an hour to relocate the transcript, which can be found here. The discussion was playfully and wisely entitled "Do We Agree?" To understand what they were after, the presentation of unique and foundational views peppered with not a little bit of wit so that the proceedings are not just substantive but downright fun, is to understand our aspirations for this blog.

(Aristotle called wit "educated insolence." The original Reform Club basked in it. Insolence is invaluable, but without education, it's only insolence and it isn't the least bit fun.)

One concession Shaw made to orthodoxy and classicism is that we must leave our rhetorical barbarism at the door. Civility is essential, but is the merest of requirements to get where we can go. To parrot the prevailing arguments elsewhere serves no purpose either: it is a waste of time and cyberink (yes, the latter can be wasted because it consumes the former). Quality over quantity, inquiry over debate, original voices over echo chambers,The New Reform Club, rhetorically at least, recommits itself to its principles, and this is non-negotiable. We will not and cannot gear ourselves to the lowest common denominator. 

The rest of our principles we shall leave open to examination, as honest inquirers and seekers of truth are honor-bound to do. We leave the doors of our modest club open to those of like mind and spirit, and rely on them to help us preserve what we are, and to help us toward what we aspire to be.

Beautiful English Prose and the Reigning Literary Zeitgeist (and some self-promotion)

Patrick Devlin, a British jurist who died in 1992, remains one of my favourite authors. He had a taste for plain speaking and plain writing. Here is a sampler:

“[Chief Justice Hewart] has been called the worst chief justice since Scroggs and Jeffreys in the seventeenth century. I do not think that is quite fair. When one considers the enormous improvement in judicial standards between the seventeenth and twentieth centuries, I should say that, comparatively speaking, he was the worst chief justice ever.”—Patrick Devlin, Easing the Passing: The trial of Dr John Bodkin Adams 92 (rev. ed. 1986).

Do you see how the passage works. After Devlin indicates that the standard view of the Chief Justice is not “quite fair,” the reader naturally expects some words of kindness or in defence of Hewart. But no. Devlin sticks the sword in deeper, and then twists it for good measure. It is reminiscent of Edgar Allan Poe’s The Cask of Amontillado (1846).

I make some stylistic efforts along these lines in one of my own publications:

Seth Barrett Tillman, Advice to the Allies—1945, 15(2) Claremont Review of Books 13, Spring 2015.

But if you prefer pathos over bathos ...

Seth Barrett Tillman, Purim & My Bangladeshi Friend, Gadfly: Culture that Matters (Feb. 11, 2013).

I was very glad to find venues for both of these pieces (along with a few favourable online reviews and links--thank you Instapundit!). Except within science fiction and fantasy circles, there are surprisingly few fora to publish parody and fiction which do not fit the current reigning literary zeitgeist, i.e., focusing on authenticity, identity, and politics rooted in race, class, and gender.

Seth Barrett Tillman

Twitter: https://twitter.com/SethBTillman  ( @SethBTillman )

PS: My prior post is: Seth Barrett Tillman, American Culture: The Flies of a Summer (Part I), The New Reform Club (Sept. 29, 2015, 6:33 PM), http://reformclub.blogspot.ie/2015/09/american-culture-flies-of-summer.html

PPS: Devlin's book is quite good, although it has a period flavour. It is primarily about the trial of a doctor for allegedly murdering one of his elderly patients. Motive: The doctor was in the patient's will! Devlin presided at the trial. Years later, after the prosecutor and defendant had both died, Devlin published his book. Such a book--by a presiding judge--was considered quite controversial. Devlin responded to his critics in a lengthy postscript, which came out in the revised edition. The postscript alone is worth the cost of the book. 

Russell Kirk and a conservatism of continuity

Mark C. Henrie has posted an analysis of Kirk's approach to conservatism, available over at ISI's First Principles website.  As Henrie notes, Kirk's conservatism was non-ideological and that makes it difficult to categorize, particularly in light of Kirk's rather difficult baroque style of composition.  However, within Kirk's writings is a developed idea of conservatism -- not an ideology but an intuition about the Permanent Things and about how those Permanent Things are known and lived out.  Henrie's overview of Kirk's approach to conservatism helps to understand Kirk's approach to the ideas that animated his work.  For those interested in reading Kirk himself and his take on American civilization, I would recommend the following by the Sage of Mecosta:

• Rights and Duties: Reflections on Our Conservative Constitution. 
• The Roots of American Order
• The American Cause

One of the key parts of Kirk's approach to conservatism is the principle of continuity. It is this principle of continuity that leads American conservatism to incorporate significant elements from the classical liberal tradition As Patrick J. Deneen writes over at Front Porch Republic in his post Is There a Conservative Tradition in America?, from the time of the Founding forward much of American conservatism has been rooted in liberalism.  After describing some of what he sees as basic tenets of American conservatism, Deneen explains: 

[E]very characteristic that I’ve listed is actually a species of liberalism. I don’t mean that they are liberal in the way that we typically use the word to describe people like Nancy Pelosi or Michael Dukakis; rather, I mean liberal in its classical conception, that political philosophy that arose in the seventeenth and eighteenth centuries with its deepest origins in the Social Contract theory of Thomas Hobbes, further refined by John Locke, amended by Adam Smith and Montesquieu, and put into effect by our Founders, especially in those two founding documents The Declaration of Independence and the Constitution. To be clear – there is a species of conservatism within this tradition, to be sure – about which I’ll say more – but at the outset it needs to be acknowledged that we are speaking here of the difference between conservative liberals and progressive liberals, and not typically non- or anti-liberal conservatives and liberals per se. 

The point is well taken.  Unlike European conservativism, which developed out of the altar and throne alliances that were the principal political fruit of the Reformation, American conservatism largely developed within a cultural and political milieu that strongly emphasized individual natural rights as understood through the British Enlightenment, along with some critical thinkers like Montesquieu who reflected on the British political tradition. 

This helps us understand, for example, how someone as central to the modern American conservative tradition like Ronald Reagan could cite Thomas Paine so much (more than any other Founder, as historian John Patrick Diggins discusses in his biography of Reagan).  American conservatism is not a refutation of the liberal tradition as much as it is a strand within that tradition.  This is one of the things that makes American conservatives stand out from their Tory counterparts in Canada and the UK, and from their Christian Democratic counterparts in Germany and Italy.  

Deneen makes another point in his post, which is to identify a more traditional, non-liberal conservatism with the anti-federalist movement during the debate over the Constitution.  According to Deneen, it is the anti-federalists, with their aversion to centralized government and the mechanisms for national action located within the then-novel Constitution, who represent the conservative spirit in the early American context.  Modern American conservatives, Deneen contends, defend a Constitution that leads inexorably towards the kind of big-government activism that they claim to eschew.  As Deneen puts it at the close of his article:

It’s true that “conservative liberalism” is more “conservative” than “progressive liberalism,” if we mean by that it takes at least some of its cues from an older, pre-liberal understanding of human beings and human nature. Still, its dominant liberal ethic – summed up in the five points I suggested at the outset – means that in nearly every respect, its official allegiances end up eviscerating residual pre-liberal conservative allegiances. In particular, it could be argued that conservative commitments 1-4 – that end by favoring consolidation (in spite of the claim to favor “limited” government), advancing imperial power and capitalism (i.e., why consolidation is finally necessary), and stressing individual liberty, are all actively hostile to commitment number 5 – the support for family and community. It is a rump commitment without a politics to support it, and one that daily undergoes attack by the two faces of contemporary liberalism, through the promotion of the Market by the so-called Right and the promotion of lifestyle autonomy by the Left. A true conservatism has few friends in today’s America.

Deneen's thesis here is worthy of some considerable discussion. To properly understand the nature of conservatism during the founding period through today, one needs to grasp one of Kirk's key insights, namely that conservatism properly understood is non-ideological.  This understanding of conservatism, developed here in America by Kirk and in the UK by by British political philosopher Michael Oakeshott, views conservatism as primarily concerned about preserving custom, tradition and usage in the face of unnecessary change.  It is about depending upon the tried and the true, upon the consensus of community culture, upon the established patterns of family, religion and voluntary associations.  

In this view, while conservatism has certain common principles and practices, it evidences pluralism as well, differing from country to country, from time to time, from place to place.  Italian conservatism, Chinese conservatism, Argentinian conservatism, Yankee conservatism not only vary greatly, they should vary greatly.  As both Kirk and Oakeshott consistently wrote, there is no single conservative ideology upon which to build a political program. It is diverse. Conservatism can be thought of more as a disposition than a doctrine, more of a way of approaching the world than a specific agenda that is uniform across time and space.  And that is part of its strength and appeal, not a weakness to be overcome by ideological purity. 

From that perspective, Kirk approached the Constitution as a fundamentally conservative document, as an attempt to preserve the best elements of the English legal and political tradition, adapted to the culture and context of America, as possible, while allowing for the prudential and necessary increase in the powers of the federal government that were necessary to preserve the nation from the disaster that was brewing under our first constitution, the Articles of Confederation. 

As for the anti-federalists as conservatives, Kirk himself did not think of them as such. Kirk mostly viewed the anti-federalists as representatives of radicalism within American public life.  They were ideological thinkers, caught in abstraction, unable to understand that the science of statesmanship was the study, as Burke noted, of necessary change.  Politics cannot remain unchanging; just as change is the pattern of biological life, reform is part of the life of the body politic.  However reform should only be undertaken when necessary, not simply because revolutions, as Jefferson once said, help to "clear the atmosphere."  

For Kirk, the conservatives of the early American Republic were the Federalists, particularly John Adams, and the Tertium Quids led by John Randolph of Roanoake.  He wrote at length about both men in his masterwork about the conservative intellectual tradition, The Conservative Mind. Adams and Randolph embodied the kind of cautious statesmanship, attached to principle but not to ideology, concerned with preserving order, justice, hearth and home  that exemplifies, in Kirk's view, the conservative approach to politics.  Such an approach is concerned with continuity more than ideology, with the coherence of a civilization in support of the Permanent Things rather than the imposition of a pure agenda on the communities and individuals that make up a nation.