Monthly First Things dump

  1. LGB ≠ T
  2. Robbing Poor Peter
  3. Weak Truths and Technocracy
  4. Lincoln contra Judicial Supremacy
  5. Of Living Constitutions and Jihad
  6. Progressivism and Tradition
  7. A kind word for Martin Luther
  8. Hart contra Augustine

1

I continue having no trouble crediting the mainstream view that efforts to change sexual orientation through some kind of counseling/therapy are almost 100% ineffective (apart from, perhaps, the “soul therapy” of decades of monastic life – which clearly intends something greater than restoration of heterosexual randiness). I don’t even have trouble crediting the view that such efforts are generally harmful, and sometimes extremely harmful.

But there’s some political grandstanding going on that threatens to conflate LG&B with T, and then to interfere clumsily with professional judgment – to legislate with a meat-ax:

FT: What is the role of government in regulating these sorts of therapeutic relationships?

It is an unusual occurrence. I can think of only a few times when laws have been passed regarding specific therapies. For example, there was a case years ago in which a child was tragically killed in the course of an unusual rebirthing intervention for attachment disorder. That clinician was prosecuted, I believe, and subsequently there was legislation introduced in that state around such interventions.

Again, as we consider gender dysphoria along with sexual identity concerns, we have to recognize that these are two different concerns with different pathways for possible therapy. Sexual identity concerns and gender identity concerns are not the same thing. To put them together into legislation reflects the very limitations in having government attempt to regulate the complexities of clinical practice; they are not the same concerns, nor are the therapies offered the same. Even the issues that make such therapies controversial vary considerably.

I think the government’s role involves supporting the regulatory bodies that oversee licensed mental health professionals in a given jurisdiction. Those regulatory boards are concerned with protecting the public, among other things, while balancing that concern against the right to self-determination. These issues become more complex when minors are involved and for good reason. However, most of the trends today are toward increasing the rights of minors to various services in the areas of health care. I think the trends in the care of gender dysphoric children are actually a case in point. One of the trends today is to intervene at about age eleven or twelve to delay puberty by introducing hormone blockers, so that a decision can be made by that child in three or four years about gender identity without having gone through puberty. That is an intervention that puts more decision-making in the hands of a minor and that child’s parents, whereas steps to legislate around these other therapies, as well as other options for resolving gender dysphoria, appear to some to limit what is available to a minor or to a family. Again, these are two different phenomena, so it is complicated. Another direction worth considering is developing more of an expanded informed consent that helps all involved make the most informed decision possible based on what we know and what we do not know. I know that there would be considerable debate about what to include in an expanded informed consent form, but such a step would seem more consistent across these concerns and more in keeping with other trends in health care services to minors.

(Mark Yarnhouse, What the White House’s Opposition to “Conversion Therapy” Means)

2

One of the greatest spiritual failures of my lifetime has been the self-righteous refusal of feminists, gay activists, and assorted multiculturalists to acknowledge the heavy price poor and vulnerable people have paid for their cherished freedoms.

To a great degree this impoverishment is forced on [Robert Putnam, author of Our Kids] by contemporary social science. It can’t see social ­institutions like marriage, family, neighborliness, and education as goods in themselves. They are goods because they have positive utility functions, which are cashed out in terms of how conducive they are to “success.”

On occasion I’ve spoken up at conferences and meetings, arguing that the preferential option for the poor today means social conservatism (again, not only, but certainly at least). It means policies that punish divorce and reward marriage. It means getting serious about limiting pornography and resisting the ­temptation to legalize drugs. It means affirming gender roles that encourage men to act like gentlemen and women like ladies. It means having the courage to use the word “sin.” Most of all it means fighting against the One Percent’s almost complete conscription of the cultural conversation to serve its own interests. (What could be more One Percent than gay marriage and efforts to break the “glass ceiling”?)

The reaction is almost always one of horror. I’m “blaming the victim” or “imposing my white male values.” I’ve come to see that it’s not the victims that most progressives care about. The well-to-do like the way the therapeutic, nonjudgmental culture works for them. It keeps the public domain open and flexible and forgiving, which is convenient for those of us who have the social capital that allows us to keep our footing when we screw up. Why should the functional people who succeed today give this up?

(R.R. Reno, The Public Square, First Things May 2015 – pay wall)

3

Empires can seem more tolerant. They don’t tend to try to convert. They simply require conformity. But a society organized around weak truths will tend not to engage. The right to rule flows to technocrats and bureaucrats who are trusted custodians of the weak truths: to maximize wealth, efficiency, health, and other forms of utility. Whatever threatens the system is simply suppressed, silenced, and destroyed, often with mechanisms designed to hide the exercise of power.

(R.R. Reno, The Public Square, First Things May 2015 – pay wall)

4

I was not, as a child, a strong student of history. In college, I did somewhat better, but not until I was an adult did history really start to fascinate me. (That’s probably nowhere near unique for curious kids with a techie bent.) Now, when American history intersects Constitutional Law, I can be really, really interested.

Nowhere is there a busier intersection than the corner of  Abraham Lincoln and Civil War. The May First Things magazine, already quoted twice on cultural issues, has a longish article on Lincoln as The Great Interpreter, by Michael Stokes Paulsen and Luke Paulsen. Had the article been hagiography, I’d have quit it, but it acknowledges where Lincoln went over the constitutional line and where the Supreme Court likely would have ruled against him if given the chance – notably on the right to secede.

Of particular interest to me, though, is the Lincolnian insight that has fallen down the memory hole:

[T]here is one great constitutional truth that ­Lincoln recognized but we have forgotten—ironically a truth central to Lincoln’s role as the pivotal figure in American constitutional history. It is that the Constitution’s meaning cannot be left simply to the whims of the Supreme Court. Rather, faithful constitutional interpretation is the shared responsibility of all government officials. The duty of determining the Constitution’s meaning is not something “We the People” can resign into the hands of any one organ of national government. On this 150th anniversary of the close of the Civil War, and of Lincoln’s death, it is well to remember Lincoln’s story and its lessons for our age.

Lincoln insisted that this lawless judicial decision [Dred Scott] should not be regarded as binding the other branches of government, which rightfully possessed the power to resist such lawless decisions, and to do so with the powers they possessed under the Constitution. This was a controversial, almost radical stance, but a logically rigorous one. Lincoln maintained that the authority of the Supreme Court was limited to the particular parties and cases before the Court. He emphatically denied that a Supreme Court decision settled the meaning of the Constitution for everyone. Thus, a wrong judicial decision did not bind the other, ­coequal branches of government, or the people. Were it able to do so, Lincoln stated in his first inaugural, “the people will have ceased to be their own rulers, having, to that extent, practically resigned their government, into the hands of that eminent tribunal.” The Constitution, not the Supreme Court, governed the nation. A horrid judicial decision could not control the policy of the government as a whole.

Each of these triumphs of Lincoln’s constitutional vision flows ultimately from another and still more fundamental Lincolnian insight. It is today controversial but, we submit, correct: The Supreme Court’s decisions are not supreme over the Constitution itself, and therefore cannot bind other responsible actors in the exercise of their independent constitutional responsibilities.

Put bluntly: Lincoln understood the Constitution to mean something other than what the Supreme Court said it meant in Dred Scott. That decision’s discovery of a supposed constitutional right to hold other human beings as property could not control the policy of the national government. During the war, Lincoln defied a Court order he thought interfered with the exercise of lawful presidential power to act in a military crisis to preserve the nation: Chief Justice Taney could not command the commander in chief. No president has taken a stronger stance on the president’s independent duty faithfully to interpret the Constitution and to act in accordance with that understanding—even if that sometimes means defying the Supreme Court when its decisions violate the Constitution, which the president has sworn to “preserve, protect, and defend.”

Lincoln’s views of the immorality of slavery and the perpetual union of our nation are much acclaimed. His approach to presidential wartime powers remains substantially in place. Yet, despite what should be its evident correctness as a matter of first principles, Lincoln’s rejection of the presumptive supremacy of the Supreme Court has fallen strangely out of favor. Today, the prevalent attitude is that whatever the Supreme Court says, goes. In other words, most today hold the Stephen Douglas view in which Dred Scott was accepted. It is a view in which, if the Court ordered it, complete national imposition of slavery would be accepted.

This presumption of judicial supremacy is not only theoretically wrong but can be practically destructive. Imagine that the Supreme Court had held in 1861—as it might have, if given the chance—that states had a right to secede and that Lincoln’s use of force was unconstitutional. If the Supreme Court had ordered Lincoln to recall the troops, vacate the White House, and move the capital north of the Mason-Dixon line, should he have complied? The logic of today’s near-reflexive judicial supremacy suggests, incredibly, that the answer is Yes.

Lincoln’s position was better. He denied the supremacy and binding character of willfully lawless Supreme Court decisions. This was more faithful to the Constitution, by far, than the Douglas position. One cannot accept judicial supremacy without accepting the duty to accept, enforce, and embrace Dred Scott or any other judicial atrocity the Supreme Court might inflict on the Constitution and on the nation whose Constitution it is. And one cannot ­accept modern notions of judicial supremacy without rejecting everything Lincoln stood for and did as president.

Thus, if we followed Lincoln today, on matters of constitutional interpretation we would be more faithful to the document, less tolerant of judicial activism, and more accepting of the role of popular constitutional self-government. We would also be decidedly intolerant of assertions of judicial supremacy over the Constitution. We would recover a healthy skepticism about judicial power. We would find the constitutional fortitude to resist indefensible judicial decisions, not least those that extend or invent constitutional legal “rights” of some persons to oppress, harm, or kill other human beings. And we would reassert one of the basic rules of the Constitution: that national social policies are properly formulated through the legislative process, not in judicial chambers.

Look for the authors’ new book, The Constitution: An Introduction, beginning May 5.

5

Harvard University Press has published The Evangelical Origins of the Living Constitution
, and Molly Oshatz reviews it.

In a nutshell, Evangelical social reform efforts of the 19th Century kept bumping up against constitutional limits. Eventually, the Constitution yielded, on a “living constitution” theory. Take if for what it’s worth, which is a lot of irony if it’s true.

Kind of like the U.S. resuscitation of “Jihad” in its effort to enlist a billion Muslims against the Evil Empire in the 1980s:

The launching of a jihad against the Soviet Union was a key part of U.S. strategy under CIA chief William Casey. He hoped to unite a billion Muslims against the Soviet Union and Marxism worldwide by borrowing from Islamic theology. The key tradition was jihad, which as Mamdani points out had been largely dormant in the preceding 400 years. The tradition of jihad was revived with significant U.S. help in the 1980s.

(The Myth of Religious Violence)

6

Scialabba and Deresiewicz remind me that progressivism always seems to end up an enemy of culture. The truth they ignore is that we can think about higher things, things greater than ourselves, only insofar as we participate in a tradition. It’s the ongoing conversation that takes us outside of ourselves and redirects our attention away from what we can achieve toward what we can know and love. One problem with progressivism is its distrust of the past, which must be progressed beyond.

(R.R. Reno, While We’re At It)

7

Romanist Reno has a kind word for Martin Luther (hyperlink added):

When I taught theology, I often assigned Martin Luther’s works. Students liked him, not because they were Lutherans (most weren’t) but because what he wrote has a biblical immediacy that makes it contemporary. If you’re scripturally literate, Luther’s open to you in a way that a Reformation-era legal or philosophical treatise isn’t. The accessibility of Christian Liberty and The Bondage of the Willflows from the fact that the Church makes the Bible a living reality. As long as Easter is celebrated, Jesus is not a man in whom people once believed, long ago. The Tomb is empty even now.

The Institute for Ecumenical Research in Strasbourg, an affiliate of the Lutheran World Federation, wants to encourage readers to engage Luther’s perennial voice. It has launched an online reading community, the Luther Reading Challenge. You can join by visiting lutherreadingchallenge.org.

8

I have to say that, as an Orthodox scholar, I have made many efforts over the years to defend Augustine against what I take to be defective and purely polemical Eastern interpretations of his thought, in the realms of metaphysics, Trinitarian theology, and the soul’s knowledge of God (often to the annoyance of some of my fellow Orthodox). But regarding that part of his intellectual patrimony that has had the widest effect—his understanding of sin, grace, and election—not only do I share the Eastern distaste for (or, frankly, horror at) his conclusions; I am even something of an extremist in that respect. In the whole long, rich history of Christian misreadings of Scripture, none I think has ever been more consequential, more invincibly perennial, or more disastrous.

(David Bentley Hart)

* * * * *

“In learning as in traveling and, of course, in lovemaking, all the charm lies in not coming too quickly to the point, but in meandering around for a while.” (Eva Brann)

Some succinct standing advice on recurring themes.