Plus ça change …

Plus ça change, plus c’est la même chose:

A recent story about Leonard Leo, who advises the President on judicial nominees and is connected to the ascent of judges such as Kavanaugh, was even more hysterical. The author worried about a “secretive network of extremely conservative Catholic activists” who are stacking the federal courts with conservative jurists. Leo’s membership in the Knights of Malta, his public work in defense of religious freedom around the world, and his connection to Catholic-educated nominees such as Kavanaugh and Neil Gorsuch, all caused the author to fret that Leo is “shaping the federal judiciary according to his beliefs, with very clear ideological consequences.” The article asserts that the conviction that human life begins at conception is a religious belief. And it laughably attributes to Catholics the view that natural law “trumps any secular law that humans (or legislatures) might dream up.”

…

The American tradition of constitutionalism abhors inquiries into the particular creeds espoused by candidates and nominees for public office. The Constitution of the United States prohibits religious tests. And anyway, religion is not the issue. Fidelity to the rule of law is what matters. Anyone can determine to follow the law, even Senators Feinstein and Durbin.

There is no reason to think that someone who accepts on faith the teachings of the Bible or the Roman Catholic Church is any less capable of correctly interpreting and applying the law than someone who accepts on faith what scientists tell us about global warming. Faith in something must precede reason—at the very least, faith in reason itself—else we could never know anything.

Adam J. MacLeod, Why Judge Kavanaugh’s Religion Should Be an Issue.

The other liberal complaint is that since the Catholic position on abortion is religiously derived, if it ultimately becomes law, that constitutes an imposition of religion. This argument is nonsense, too. Under American concepts of political pluralism, it makes no difference from where a belief comes. Whether it comes from church teaching, inner conviction or some trash novel, the legitimacy of any belief rests ultimately on its content, not on its origin. It is absurd to hold that a pro-abortion position derived from, say, Paul Ehrlich’s overpopulation doomsday scenario is legitimate but an anti-abortion position derived from scripture is a violation of the First Amendment.

Charles Krauthammer, Washington Post, March 23, 1990 (part of his collection Things That Matter).

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The waters are out and no human force can turn them back, but I do not see why as we go with the stream we need sing Hallelujah to the river god.

(Sir James Fitzjames Stephen)

Reality is that which, when you stop believing in it, doesn’t go away.

(Philip K. Dick)

Some succinct standing advice on recurring themes. Where I glean stuff.

Follow me on Micro.blog, too, where I blog tweet-like shorter items and … well, it’s evolving. Or, if you prefer, those micro.blog items also appear now at microblog.intellectualoid.com.

Calming the discord

Impatient with the three branches of government established at the nation’s founding, the left routinely takes its politics to the streets now to demand remedies for “inequality” or “injustice.” Yet these inchoate demands have become so disconnected from the normal mechanisms of politics that no Congress, representing 535 elections, could possibly turn them into legislation.

…

Shortly after the Obergefell decision, something else of cultural and political significance happened. Within months, the left began to agitate for transgender rights, another moral claim whose substantive meaning is a mystery to most Americans.

Liberals remain incredulous at Mr. Trump’s election. But nearly half the electorate voted for him, and among the reasons is that today a lot of people—across all income classes—feel they are really being jammed by the culture. Progressive jurisprudence had a lot to do with this. Liberals won their share of court decisions, but at a price: The courts in America became an agent of social discord.

It would be good for the country’s stability if a Kavanaugh Court disincentivized the left from using the courts to push the far edges of the social envelope. This is not about turning back the clock. It is about how best to resolve bitter social and cultural disputes in the future. It is about no longer using the courts to make triumphal moral claims against the majority.

In the Kavanaugh Court, extending rights claims beyond their already elastic status is going to require more rigor than appeals to a judge’s personal sensibilities or a theory of social organization developed in law journals.

Advocates for social change involving race, gender, identity and such will have to convince representative majorities, elected by voters, to agree with their point of view. Unlike in the past four decades, the high court will more often weigh in after, not before, the political process has happened.

The United States needs to settle down politically ….

Daniel Henninger (emphasis added, paywall)

I’m less convinced than Henninger that the Roe v. Wade line of cases can survive a court that shows rigorous respect for the Constitution. Here’s why.

Not too long ago, I got into an internet dust-up with an progressive ignoramus who claimed that the purpose of the Constitution was to establish “rights.” I tried to correct him, and was treated as a monster for denying his dogma.

He was wrong, but he’s far from alone. It’s widely overlooked these days (though probably not widely ignored when mentioned) that the Bill of Rights are ten amendments to the constitution, the core purpose of which was to set up the rules for governing a new nation (duh!).

Among those rules were separation of the national government into three branches, with checks and balances among them, and with limitation on their overall power because states and the people would retain all powers not delegated to the national government.

So when an overreaching court seizes an issue from the States, although the Constitution left that issue to the states, that seizure is no less a violation of the constitution than when Congress makes a law, say, respecting the establishment of religion or prohibiting the free exercise thereof.

The Supreme Court Justices swear to uphold the Constitution, and take no oath to advance rights claims without Constitutional roots. Doesn’t that oath oblige justices to undue the mistake of a prior court that improperly wrested an issue away from those to whom the Constitution left it?

It’s pretty well known among legal scholars that the constitutional underpinnings of our abortion jurisprudence are somewhere between shaky and fanciful. There was a veritable cottage industry of attempts on the legal left to re-write the defective Roe v.. Wade opinion in law journal articles from 1973 to 1992, when Justice Kennedy replaced all the trimester crap and other Roe detritus with the equally risible “mystery passage” and invocation of stare decisis to avoid a “jurisprudence of doubt.” (“Shut up,” he explained.)

Perhaps a “Kavanaugh Court” would demur from overruling the Roe line of cases because frank overruling would increase an already-dangerous level of political discord. I suppose that could be justified on a “lesser Constitutional evil” theory (e.g., “If we honor federalism and return abortion laws to the states, where they belong, the whole Constitutional edifice could be toppled in the aftermath”).

In an era of Constitutional outrages, I don’t think that would be at the top of the outrage list, but I could fairly easily see it going the other way, too, especially if our political discord dies down before an appropriate case reaches the court.

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The waters are out and no human force can turn them back, but I do not see why as we go with the stream we need sing Hallelujah to the river god.

(Sir James Fitzjames Stephen)

Reality is that which, when you stop believing in it, doesn’t go away.

(Philip K. Dick)

Some succinct standing advice on recurring themes. Where I glean stuff.

Follow me on Micro.blog, too, where I blog tweet-like shorter items and … well, it’s evolving. Or, if you prefer, those micro.blog items also appear now at microblog.intellectualoid.com.

Will Kavanaugh butcher the sacred cow?

I think it was Nina Totenburg who on NPR Tuesday evening was incredulously challenging a Trump spokesman on the claim that President Trump didn’t ask SCOTUS nominee Kavanaugh about abortion — because Trump said on the campaign trail that he would appoint pro-life justices. As the spokesman pointed out, he also promised that there would be no litmus test and that he provided a list, later expanded, of people from whom he would nominate.

Here’s the solution of Totenburg’s clumsy effort at setting up a trick box:

There are no secret handshakes or pass-codes. Trump and Kavanaugh are (or will be) telling the truth when they deny discussing abortion. Get over it.
Trump (or, likelier, his advisers on judicial matters) are just quite confident that the people on his list are going to be hostile to the Supreme Court’s abortion jurisprudence because it’s a hot, steaming mess, lacking firm roots in the Constitution. The people on the list revere the Constitution and will be disinclined, all else being equal, to ignore hot steaming messes that sully the Constitution by the pretext that it, the Constitution, and not errant justices, created the mess.
Notably, Democrat Chuck Schumer has declared his certainty — and horror — about how Kavanaugh would decide abortion cases (presumably starting with Kavanaugh’s constitutional reverence and following the trail from there, though Schumer would never admit that the one follows the other logically).
Democrat Presidents are similarly confident, without actually asking, that their nominees are not going to be overly troubled by the legal messiness of the status quo. Their party has a rather latitudinarian view about the importance of the Constitution’s original public meaning, plus some theories on how we can never know that meaning, and (double-plus) it reveres the sexual revolution. Q.E.D.
Trump was and is a bullshitter. Any correspondence between what he promises and what he does is, generally, coincidental. His judicial nominees from that list have been a happy exception, as he has hewed to the list of nominees from which he promised to pick. (Okay: Schumer’s a bullshitter, too, though definitely a minor-leaguer compared to President MAGA.)

A Kafkaesque part of the prescribed ritual combat will be invocations or deprecations of “Roe v. Wade.” It’s weird because Roe finally succumbed to its birth defects (helped along by a thousand cuts from Law Journal articles, left, right and center) in 1992, with Anthony Kennedy and company quietly interring it and trotting out the new rationale for continuing a liberal abortion regime: No more trimesters or such; the test of a law is whether it creates an “undue burden” on access to abortion, because “[a]t the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe and of the mystery of human life.” (Damn! How could I have missed that?!)

Roe is dead. De mortuis nil nisi bonum. But if you take away the totemistic invocation of Roe, the Senate might be struck dumb(er).

And therein lies the dilemma that will produce some sordid theater over the coming months.

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The waters are out and no human force can turn them back, but I do not see why as we go with the stream we need sing Hallelujah to the river god.

(Sir James Fitzjames Stephen)

Reality is that which, when you stop believing in it, doesn’t go away.

(Philip K. Dick)

Some succinct standing advice on recurring themes. Where I glean stuff.

Follow me on Micro.blog, too, where I blog tweet-like shorter items and … well, it’s evolving. Or, if you prefer, those micro.blog items also appear now at microblog.intellectualoid.com.

Zombie Analysis

Zombie analysis of Supreme Court nominees is my topic today.

Iconic radio talk show host Rush Limbaugh has often said that liberals “always let us know who they fear” through their unhinged attacks. Among all the potential nominees mentioned a little over a week ago, Amy Coney Barrett immediately attracted the most flak from the left.

And so, of course, the preferred nominee of Doug Mainwaring at brain-dead website LifeSiteNews.com, is Amy Coney Barrett. Not because dispassionate conservative analysis commends her (a topic entirely ignored), but because she triggers the enemy:

NARAL
Planned Parenthood
Seasoned Democrat politicians
Dick Durbin
Chuck Shumer
New York Times
MSNBC
Ruth Marcus
Chris Cillizza
Slate.com
Washington Post
Ivy League law school hegemony

I am not making this up or exaggerating. Literally the first ten reasons given for supporting her are the identies of ten opponents. The last two are my interpretations of less straightforwardly identified bogeymen.

The article, by the way, bears the unironic title “12 reasons Amy Coney Barrett should be on the Supreme Court.”

I have nothing against Amy Coney Barrett except that this kind of trolling is the commonest artument for her. That’s not her fault. It’s just the times we live in.

And it’s contemptible. It doesn’t even do justice to the qualifications of Judge Barrett, who is reduced to a piece of red meat.

* * * * *

The waters are out and no human force can turn them back, but I do not see why as we go with the stream we need sing Hallelujah to the river god.

(Sir James Fitzjames Stephen)

Reality is that which, when you stop believing in it, doesn’t go away.

(Philip K. Dick)

Some succinct standing advice on recurring themes. Where I glean stuff.

Follow me on Micro.blog, too, where I blog tweet-like shorter items and … well, it’s evolving.

Woke for what purpose?

David Brooks nails it, though it stings:

In an older frame of mind, you try to perceive the size of a problem objectively, and then you propose a solution, which might either be radical or moderate, conservative or liberal. You were judged primarily by the nature of your proposal.

But wokeness jams together the perceiving and the proposing. In fact, wokeness puts more emphasis on how you perceive a situation — how woke you are to what is wrong — than what exactly you plan to do about it. To be woke is to understand the full injustice.

There is no measure or moderation to wokeness. It’s always good to be more woke. It’s always good to see injustice in maximalist terms. To point to any mitigating factors in the environment is to be naïve, childish, a co-opted part of the status quo.

…

These days we think of wokeness as a left-wing phenomenon. But it is an iron law of politics that every mental habit conservatives fault in liberals is one they also practice themselves.

(David Brooks, The Problem with Wokeness)

It seems to be my role in life to try to “awoken” people, from the conservative side, to the problems conservatives see, especially in the culture and in religious freedom. I’d be a lousy legislator because I’m weak on solutions. (Hmmmm. Is that what’s behind some of our polarization?) I know people who’ve made pretty good livings being even more woke (or it’s conservative counterpart) than me.

But I’ve begun reading, apropos of one of my longest-standing concerns, Charles C. Camosy’s Beyond the Abortion Wars, which is premised on there being wider-spread ~~dis~~agreement (“agreement” — “disagreement” was a Freudian slip of the fingers) than the warring sides seem to think. I’m skeptical (of course — it’s a reflex), but I’ll try to remember to share a bit if, despite myself, I think there’s much merit in his argument.

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I also blog short items at Micro.blog .

Some succinct standing advice on recurring themes.

Where I glean stuff.

North of the Border, Up Canada Way

No State really cares what its people believe, so long as they keep it to themselves, and salute the State’s gods on all State occasions. The State’s gods today may be Abortion and Sodomy and Gender Metamorphosis. We might want to laugh at the idiocy of it. But they are gods, State gods, and every citizen must salute, as we see in this form-ticking exercise. Those who refuse must confront the State’s high opinion of itself.

This does not mean you can’t be a Catholic — so long as you keep it in the privacy of your own mind. It is only when you act as a Catholic, that you deliver yourself into the State’s hands.

… So long as we remain meek and obedient, to anything we are required to sign, the Antichrist himself wouldn’t care less what we think. The trouble arises only when we fail to sign, salute, or check the right boxes. That is, from the Antichrist’s point of view, a form of defiance that requires punishment — a punishment that we have brought upon ourselves, as will be condescendingly explained.

…

[M]ost apostatize under pressure, and I think this has always been so …

Pray for their souls, but don’t worry about them, on the practical level: for they will disappear. They have no foundations, no real opinions, and they don’t breed. The generation that follows “nominal Catholics” are not even nominal. The generation after that does not even get born. Over time, only the faithful remain.

Focus on what is within our power, which starts not with “outreach” and “dialogue” but with rebuilding our Church. For she is very weak, and we must make her strong.

(David Warren to the Catholic Civil Rights League of Canada; H/T Rod Dreher)

It is not impossible to defeat the “Twisted Nanny” state, but the precedent is weak:

God bestows such Grace that we could all be martyrs, but in practice we don’t want to receive it. The courage that we don’t have is not something we’re inclined to pray for — and when I say “we” I do not only mean people at the present day. The history of earthly tyranny corresponds to the human search for the path of least resistance. As Alexander Solzhnitsyn used to say, if everyone in Soviet Russia would get up one morning, resolved to speak only the truth, the Communist Party would collapse by noon. Yet through seventy-five years, that never happened.

“Resolved to speak only the truth.” That’s what’s so endearing about Jordan Peterson. Indeed, maybe that’s all that’s endearing about him, but it’s more than enough. Canada needs him. We need him.

And don’t give me any bull about “That’s Canada. It can’t happen here.” It is happening as free exercise of religion is now equated with and vilified as “an excuse for discrimination.”

“It’s a complete absurdity to believe that Christians will suffer a single thing from the expansion of gay rights, and boy, do they deserve what they’re going to get.”

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We develop heart and mind in parallel, that the mind will protect us from the wolfs, and the heart will keep us from becoming wolves ourselves. (Attributed to Serbian Patriarch Pavle)

Some succinct standing advice on recurring themes.

Where I glean stuff.

Speech or Religion?

I wrote several times, I’m pretty sure, that I thought the Masterpiece Cakeshop case would be argued by Jack Phillips’ attorney, and would ultimately be won, as a case about compelled artistic expression, a violation of the First Amendment’s speech clause. Free speech and compelled expression precedents are more strongly in Phillips’ favor than the current state of the law on free exercise of religion. Or so I thought.

I stand by that, but I’ll admit that the justices asked some pretty skeptical “where do we draw the line” questions about when or whether a cake is expressive, when a craft is art, and stuff like that (the last clause is my fudge factor — I’m not going back to review the transcript of argument again).

[Digression: I don’t think they’d have asked those skeptical questions had the case not implicated our newest Super-Right, the right to have everyone in every way affirm your every expression of your every sexual (and “gender”) whim. So it appears that the law of the land has another distortion factor baked into it: an LGBT distortion factor has taken root, joining the original abortion distortion factor (“no legal rule or doctrine is safe from ad hoc nullification by this Court when an occasion for its application arises in a case involving state regulation of abortion”) and a little-remarked creationist distortion factor (Creationists categorically lose cases involving science teaching—and intelligent design advocates get labeled “Creationists”).]

But I do disgress. I wrote today because someone I respect thinks, after scrutinizing the Masterpiece Cakeshop oral arguments, that the case could turn on the free exercise of religion after all.

Mark Bauerlein and Mark Movesian recently chatted about this on the First Things podcast. Bauerlein is no lawyer, but Movesian is a law prof, and he thinks Anthony Kennedy may smell blood in the water: a lack of neutrality or of general applicability in the Colorado law, which could be fatal under Employment Division v. Smith‘s new test for free exercise violations (the “when does the constitution create a religious exemption to a law” question).

The lack of neutrality (e.g., gerrymandering to target an unpopular religion) has been fatal in only one famous case since Employment Division v. Smith, to the best of my recollection: a case involving Hialeah Florida targeting the Santeria religion, Church of the Lukumi Babalu Aye v. City of Hialeah. But general applicability has been a wider problem, because, basically, religion gets an exemption if anyone gets an exemption, and our laws typically are riddled with “small business,” “Mrs. Murphy’s Boarding House” or other piddly little exemptions that someone lobbies for powerfully or that seem fair to legislators.

So here’s the problem: Colorado has, on something like three occasions, exempted cake bakers from making cakes that opposed gay rights or same-sex marriage. I assume those cakes were sought by provocateurs who, frankly, I would have dismissed as misguided and counterproductive (I actually may have so dismissed them). But by asking for a Bible-shaped cake with a Romans 1 “Clobber Passage,” the provocateurs may have turned refusal into “anti-Christian discrimination.”

Not only did those other three bakers win on the basis of dubious distinctions from the Masterpiece Cakeshop case, but a couple of Colorado’s Civil Rights Commissioners slung some bigoted-sounding remarks at Jack Phillips, with which Justice Kennedy grilled Colorado’s attorney. (Pro Tip: Do not let any mean words pass your lips if Anthony Kennedy may eventually be judging your case.)

I’ve taken more time than intended hyperlinking to terms of art and cases that not all readers may know, so I’ll wrap up.

Bauerlein, the non-lawyer, was delighted to think this might be decided on free exercise of religion grounds. I disagree. I would consider it remarkable and disheartening if Jack Phillips won on “an oopsie!”—catching the Colorado Civil Rights Commission in an inconsistent application of its facially neutral and exceptionless law—because that would be a narrow decision where I’d like, the cases that have built up in this area need, and the Supreme Court normally delivers, something bigger and more definitive than “this one Colorado law was applied to Jack Phillips in an nasty and inconsistent, and therefore unconstitutional, manner.”

The country doesn’t get a lot of guidance out of that on how to behave in the future, and what guidance it does get tends toward “use some guile and maintain plausible deniability when you stick it to Christian bigots.”

But if Colorado’s “oopsie” prompts overruling of Antonin Scalia’s nadir, his new free exercise test in Employment Division v. Smith, and restoration of the status quo ante, the Wisconsin v. Yoder free exercise test, I would be stunned and very, very happy.

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Some succinct standing advice on recurring themes.

Where I glean stuff.