Trade-offs of pluralism

I’m still bereft of worthy, fresh ideas for blogging since blogging for me is part of an iterative search for truth and I don’t have a good enough handle on coronavirus to say a whole lot confidently and truthily.

Except maybe this: If you think the coronavirus is a hoax and not very serious, pull your head out of those nether-regions where the sun don’t shine (i.e., shut off Limbaugh, Hannity and their ilk), get a few basic facts, and think about how many Chinese, Italian and Spanish people died, how many international organizations sounded alarms, in this elaborate hoax to dethrone King Donald. Does that sound plausible?

Lacking something fresh, I found another incomplete draft, from September 9, took it and dusted it off. Enjoy!

* * *

Sohrab Ahmari and David French finally faced off live at Catholic University of America Thursday evening [September 5?], moderated by Ross Douthat.

In debating terms, it was no contest: French cleaned up. In fairness to Ahmari, his wife had a child on Wednesday, so he had things on his mind more important than a mere livestreamed national debate of sorts.

But again and again, French, in good Evangelical style, spoke of the freedom to preach the Gospel in a content-neutral public square, to lead drag queens to Jesus, and such. That’s pretty consistent with the forward-facing values of ADF, the Evangelical-leaning public-interest law firm for or with whom he formerly worked.

It started to sound as obsessive as Ahmari’s concern over Drag Queen Story Hour. So I was glad to see Jake Meador at Mere Orthodoxy argue for something a bit thicker than mere neutrality:

For most of the … campus ministries at Nebraska, …universities were convenient social institutions because they rounded up a large number of demographically similar young people into a single place where they would have broadly identical routines, all of which made it very easy to evangelize them. Many of these groups did not think anything of taking their students away from campus regularly on retreats, heavily programming their weeks (thereby cutting into their time to give to their studies), and even sometimes suggesting that their academic work was of mostly incidental importance. The real life happened in Bible studies and when you prayed and over coffee with your discipler or disciplee. College, much like one’s eventual career, was mostly a necessary evil that simply secured material goods for you.

While watching the French-Ahmari debate last night it occurred to me that French seems to have a fairly similar vision of the nation—it’s an incidental good that is useful for advancing certain strictly material goods but it pales in significance when set next to the work of the church …

The point is not necessarily that French should endorse some species of integralism, although it is worth noting that in his handling of rights and the nature of religious doctrine as it relates to public life French is far closer to the Baptists than he is the traditional views of the reformed tradition to which he belongs. But that point aside, French could preserve many of the rights he cares about preserving while anchoring his account of the political in something more real than the pragmatic adjudication of disputes within a pluralistic society.

… That the government could be something more than a mere arbiter who threatens to hit you in the head with a brick if you don’t play nicely with your neighbor seems to be unimaginable ….

There’s much more Jake wrote, but you can go read it yourself readily enough.

By lifelong mental habit and eventual initiation into the solemn mysteries of “thinking like a lawyer,” I don’t suppose I’ll ever be able to leave the camp of classical procedural liberalism, but the Ahmaris and Meadors of the world at least drive home that there are trade-offs in our pluralistic experiment.

One of the trade-offs is the risky one of declaring, a priori, that we must never agree on just what is the “common good” because we know that there’s no such thing as human nature, just humans with various and sundry natures, each, probably, as unique as a snowflake. I disagree with both dogmas, but for the foreseeable future, I’m a loser. It will take some undeniable anthropological catastrophe, the equivalent of COVID-19, to turn those tables.

* * * * *

[O]nce you say you are ashamed,
reading the page they hold out to you,
then such light as you have made
in your history will leave you.
They will no longer need to pursue you.
You will pursue them, begging forgiveness,
And they will not forgive you.
There is no power against them.
It is only candor that is aloof from them,
only an inward clarity, unashamed,
that they cannot reach ….

Wendell Berry, Do Not Be Ashamed

* * * * *

You can read most of my more impromptu stuff at here. It should work in your RSS aggregator, like Feedly, should you want to make a habit of it.

I highly recommend blot.im as a crazy-easy alternative to Twitter (if you’re just looking to get your stuff “out there” and not pick fights).

Second Circuit blows it

The Second U.S. Circuit Court of Appeals now has the distinction of being the only Federal Court, District or Circuit, to uphold Team Trump’s denial of Byrne Grants to cities that do not actively comply with its congressionally-unauthorized immigration rules:

The Justice Department praised the decision, issuing a statement calling it a “major victory for Americans” and saying it recognizes that the attorney general has authority to ensure that grant recipients are not thwarting federal law enforcement priorities.

(AP)

It is not a victory for Americans. Americans lose when the Federal government aggrandizes itself at the expense of cities and states without Constitutional warrant, and lose doubly when the Executive aggrandizes itself without congressional warrant as well.

And it’s not a matter of “thwarting federal law enforcement priorities” to refuse cooperation.

What kind of “conservative” impersonators do we have running DOJ?

Ilya Somin gives his own reasons on how the Second Circuit is miserably wrong.

I hope this decision doesn’t survive review by the full Second Circuit, as this was just a (3-judge?) panel, not the full Circuit.

If it does, look for a successful Supreme Court challenge now that there’s a “Circuit split,” probably striking down 8 USC Section 1373 in the process.

* * * * *

Secularism, I submit, is above all a negation of worship. I stress:—not of God’s existence, not of some kind of transcendence and therefore of some kind of religion. If secularism in theological terms is a heresy, it is primarily a heresy about man. It is the negation of man as a worshiping being, as homo adorans: the one for whom worship is the essential act which both “posits” his humanity and fulfills it.

Alexander Schmemann, For the Life of the World, Appendix 1

I appreciate Donald Trump’s judicial appointments and a few other things he has done, but I’m utterly opposed to allowing that hateful, unstable and completely self-serving man to serve as President. Maybe by saying it here, I’ll feel less compelled to fault his multiple daily outrages — mere corroboration of his dark soul and tormented mind — in the body of the blog.

You can read most of my more impromptu stuff at here. It should work in your RSS aggregator, like Feedly, should you want to make a habit of it.

Entangled musings

So long as worship of the Emperor as a God was required by law of all citizens, to become a Christian meant to become a criminal. In consequence, the Christians of the first four centuries A.D., subject like everyone else to the temptations of the Flesh and the Devil, had been spared the Temptations of the World. One could become a converted and remain a thorough rascal, but one could not be converted and remain a gentleman.

(W.H. Auden, in the Introduction to The Complete Poems of Cavafy)

My former activism on behalf of unpopular causes (e.g., against abortion, against mandatory social leveling on behalf of practitioners of trendy vices) was never a strategy to “get my name out there” so people would seek my legal services. Insofar as it did bring me clients, they strongly tended toward eccentricity if not outright crackpottery.

We were not formally criminals, my clients and I, but we knew that we could not aspire to unequivocal worldly respectability, either. (That is not a characterization of all my clients — just the ones who I knew as co-belligerents in lost causes.)

Most of these activism-related clients were “conservative” Protestants, as was I then. Most of them plainly were either tacitly Nominalists or at least utterly incapable of framing a confident argument in Realist terms. They were the proverbial “Bible-thumpers,” pulling out their favored proof-texts that sodomy is sinful, or that God knows each of us en ventre sa mère. The problem came connecting such things to law.

In a recent podcast, Fr. Patrick Henry Reardon opines that Nominalism is probably, “the deepest flaw in the whole Protestant enterprise” (Luther referred to William of Ockham, the Franciscan popularizer of Nominalism, as his “mein meister”, and the Church of England still commemorates Ockham on April 10.) Fr. Pat’s podcast is actually a pretty succinct introduction to the Nominalist-Realist contrast. (Quick: is adultery wrong because God forbade it or did God forbid it because is wrong — contrary to reality as he created it?)

Somehow, I was a Realist, or leaning strongly Realist, even before I knew the Nominalist-Realist distinction and well before Orthodoxy. I frequently lamented, if only in private, the embarrassing and counter-productive arguments of my co-belligerents in the causes we all supported (or, likelier, opposed).

My tacit Realism (which I’m fairly sure developed unawares after my adolescence) may have been another factor, along with my earlier-in-life onset of temperamental partiality to contemplation more than action, that made Orthodox Christianity click for me when I finally encountered it. I wish I were confident that North American Orthodox Christians, especially my fellow converts, were solidly Realist, because we’re living in parallel ecclesial realities if they’re not.

But I began talking about “my activism.” Do I contradict myself, interjecting contemplation? I think not. My “activism” was argumentation, verbal and in writing, which is a fairly contemplative form of activism. I’ve never raided a draft board, lain down in a street, or otherwise gotten into the physical scrum.

And is there some latent negativity in my oppositional activism (rather than supportive activism)? Again I think not, though it may, once more, dovetail with an aspect of Orthodoxy: apophasis, known in Latin as the via negativa. More specifically, I’m less confident of the location of the “this is right and good and pure” bullseye than I am about “wherever that bullseye is, it ain’t here.”

After more than 22 year in Orthodoxy, I’m still picking up threads that I think helped to lead me here. Picking them up, and acknowledging their entanglement and, sometimes, ineffability seems true to life — which is notoriously messy — more generally.

* * * * *

Secularism, I submit, is above all a negation of worship. I stress:—not of God’s existence, not of some kind of transcendence and therefore of some kind of religion. If secularism in theological terms is a heresy, it is primarily a heresy about man. It is the negation of man as a worshiping being, as homo adorans: the one for whom worship is the essential act which both “posits” his humanity and fulfills it.

Alexander Schmemann, For the Life of the World, Appendix 1

You can read most of my more impromptu stuff at here. It should work in your RSS aggregator, like Feedly, should you want to make a habit of it.

In your heart, you know he’s wrong

Andrew Walker has written an excellent and sympathetic account of why many conservative Christians vote for Trump.

My critique has little to do with what he says about the objects he focuses on, more to do with his too-narrow field of vision:

All the negative analysis of Trump is framed in terms of how wicked and intemperate his is. That’s secondary for me, as my top concern is how his extreme narcissism distorts his perception, cognition and volition. I don’t want a delusional man managing crises. I want someone who, when faced with a choice between doing right for the country and grabbing a benefit for himself, will know that there can be a difference, and is capable of putting the country first. In your heart, you know that’s not Trump.
None of the analysis of the complexity of the choice mentions the possibility that our choice is not binary. Perhaps (as I think) both parties are so corrupt that it’s time to ~~give up~~ “let go and let God” on the short game — and by “short,” I mean the next few decades in all likelihood, and play a “longer game” politically by looking elsewhere.

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You can read most of my more impromptu stuff at here. It should work in your RSS aggregator, like Feedly, should you want to make a habit of it.

Cultural Liturgies

America does not have a liturgy of repentance. The days of fasting once enjoined upon us are a thing of the past. Even then, for all the prayers and fasting of Lincoln’s republic, no particular liturgy ever marked the end of slavery, much less sought to repent for its evils. To this day, many seek to justify its history.

When the Soviet Union fell, within a few short years, Russians began to create memorials and liturgies for the atrocities of the Soviet Union. In Moscow, at the killing fields of Butovo, a Church now stands as a memorial to its victims. Public liturgies are held there on a regular basis. It is one of many such memorials across the country.

Our public narrative is very thin. The Church historian, Martin Marty, once said that American Christianity was “2,000 miles wide and 2 inches deep.” When our Christian theology mimics the triumphant patriotism of our culture, nothing deeper ever begins. Depth comes with suffering. Suffering creates sorrow, and sorrow, of a godly sort, produces repentance.

We are bad at enough stuff and have a history sufficiently marked with sorrow to create fertile ground for repentance. It lacks the humility to greet it.

It is ever so much more than a game.

Fr, Stephen Freeman

I suspect that Fr. Stephen’s blog entry was spurred by Sunday’s SuperBowl LIV, with the only liturgical elements our nation knows: patriotism with a dash of remembrance. It might even have been influenced by Fr. Steven browsing the Eighth Day Books book table at the Eighth Day Symposium a bit over a week ago, on which table I’m pretty sure James K.A. Smith’s Cultural Liturgies trio was on display.

* * * * *

Trump didn’t do the thing he’s accused of doing, but if he did it was fine, and in fact that’s exactly what he did, get over it, because it’s not only fine, it’s precisely what we want from a president, and can you believe that Biden did the same thing, shame on him.

Peter Sunderman

You can read most of my more impromptu stuff at here. It should work in your RSS aggregator, like Feedly, should you want to make a habit of it.

Montana’s Blaine Amendment case

I know I’ve written about this general topic before, maybe for my private journal or maybe published, so forgive me if this is plowing old ground.

Mark Movesian at the St. John’s Law School Center for Law and Religion blogs at the Law and Religion Forum that he thinks the petitioner will prevail in Espinoza v. Montana Dep’t of Revenue, a case wherein the Montana Blaine Amendment led the state Supreme Court to invalidate an entire, modest program of state aid to private schools, including religious schools, but (let us presume, as it appears to be true) “wholly as a result” of parents’ “genuine and independent choice” (two criteria of a prior Supreme Court precedent).

That’s a mouthful I know. Here’s a longer, more relaxed account.

Because the Supreme Court took the case, I think Movesian is correct about the outcome: if the court wasn’t inclined to overrrule the Montana Supreme Court, it could have just rejected the case.

I hope Movesian is correct that the decision will be a shot across the bow of states that retain Blaine Amendments, rather than a vehicle to invalidate all Blaine Amendments. I hope that because, in my mind, it would be “conservative” judicial activism to rule more broadly (more correctly, it would require a whole lot of ‘splainin’ why it wasn’t judicial activism to persuade me).

I’m a strong advocate of religious freedom in an expansive sense, including some instances where some people would contend that one’s religious freedom causes harm (usually, “dignitary” harm) to another. Consequently, I detest Blaine Amendments’ typical operations today.

But the outcome in Montana is that religious parents and parochial schools are not being treated any differently than “secular” parents and their private schools. If I was a Montana legislator, I might be mad at my Supreme Court for striking down the program, but were I a Montana judge, I might well have found it the best balancing of my state Blaine Amendment’s ban with federal equal protection requirement to strike down the whole law, just as Montana’s Supreme Court did.

The best argument I can see for petitioner Espinoza is that “but for” (a causal connection) the state Blaine Amendment, the whole program would have stood and dollars could be going to the religious school of my preference — an argument that, lacking a complaint of unequal treatment, I find too weak, given my current ignorance of the arguments in the briefs.

Maybe my hesitation means I’m, oh, I dunno, a temperamental conservative or something,

* * * * *

In the fearful day of judgment, O Lord, forgive my prissy efforts at purity.

You can read most of my more impromptu stuff at here. It should work in your RSS aggregator, like Feedly, should you want to make a habit of it.

Framing a guilty President-Elect

A dialog between conservative lawyers, one certifiable Never-Trumpish, the other too new to me for me to say, on the FBI’s counter-intelligence investigation of the Trump campaign:

French: Do you think they thought it was gonna all come out fine because they believed they were gonna have the goods, and they were going to be the team that exposed it? Ummm. Because you know, when you have a successful prosecution — let’s say you send a Gotti to jail — there are often elements of that prosecution that are bad. You’ll have suppression motions that evidence was collected unconstitutionally, you’ll have a henchman who walks because that prosecution was so bad — whatever. But the fundamental bottom-line story is “We got him,” and everyone who’s involved in that is a hero … And it just feels to me like this is the kind of thing you do when you are pretty darn sure that you know what the ultimate outcome is going to be.

Isgur: Well, let me use a more concerning example. I have worked on cases where defendants, including one who was on death row, [were] framed. Prosecutors and police don’t frame people who they believe to be innocent — at least I have not seen that happen. They hide evidence or manufacture evidence against people they believe to be guilty. I have no doubt in reading all of this that they truly believed that this was true and it was just a matter of proving it. They were not using these investigative techniques against innocent people …

French: Well, let me make another argument for my theory about the malignancy of the Steele Dossier … If you look at the alacrity with which the ratcheted up the effort to get the Carter Page FISA after they got the Steele Dossier — I have long thought that what the Steele Dossier did effectively was create the blueprint of what they were going to prove ….

David French and Sarah Isgur in the inaugural episode of the new Advisory Opinions podcast from The Dispatch.

I think French and Isgur are right (and that their new podcast is very promising — better than one French did with Alexandra DeSanctis, not a lawyer, at NRO), and I think so largely for my convictions about human nature — essentially what Isgur says about prosecutors and police.

I also coincidentally read a review of Clint Eastwood’s new movie Richard Jewel that posits that it has no heroes and no villains — just ordinary people doing their jobs (and making life hellish for an innocent oddball). Then I read another that makes it a parable of the Russiagate investigation, with Trump being the oddball who ipso facto was guilty.

That Trump seemed such an oddball that he must be guilty (and that “oddball” is massively understated) rings emotionally true, but I’ll withhold judgment on whether Clint Eastwood is so clairvoyant that he’d make a parable based on Trump’s innocence, which was not then manifest (even if you think it is now).

* * * * *

Sailing on the sea of this present life, I think of the ocean of my many offenses; and not having a pilot for my thoughts, I call to Thee with the cry of Peter, save me, O Christ! Save me, O God! For Thou art the lover of mankind.

(From A Psalter for Prayer)

You can read most of my more impromptu stuff at here. It should work in your RSS aggregator, like Feedly, should you want to make a habit of it.

Make America Human (Again?)

[S]hould someone ask me whether I would indicate the West such as it is today as a model to my country, frankly I would have to answer negatively. No, I could not recommend your society in its present state as an ideal for the transformation of ours. Through intense suffering our country has now achieved a spiritual development of such intensity that the Western system in its present state of spiritual exhaustion does not look attractive. Even those characteristics of your life which I have just mentioned are extremely saddening.

A fact which cannot be disputed is the weakening of human beings in the West while in the East they are becoming firmer and stronger — 60 years for our people and 30 years for the people of Eastern Europe. During that time we have been through a spiritual training far in advance of Western experience. Life’s complexity and mortal weight have produced stronger, deeper, and more interesting characters than those generally [produced] by standardized Western well-being.

Therefore, if our society were to be transformed into yours, it would mean an improvement in certain aspects, but also a change for the worse on some particularly significant scores. It is true, no doubt, that a society cannot remain in an abyss of lawlessness, as is the case in our country. But it is also demeaning for it to elect such mechanical legalistic smoothness as you have. After the suffering of many years of violence and oppression, the human soul longs for things higher, warmer, and purer than those offered by today’s mass living habits, introduced by the revolting invasion of publicity, by TV stupor, and by intolerable music.

…

If the world has not come to its end, it has approached a major turn in history, equal in importance to the turn from the Middle Ages to the Renaissance. It will exact from us a spiritual upsurge: We shall have to rise to a new height of vision, to a new level of life where our physical nature will not be cursed as in the Middle Ages, but, even more importantly, our spiritual being will not be trampled upon as in the Modern era.

This ascension will be similar to climbing onto the next anthropologic stage. No one on earth has any other way left but — upward.

Aleksander Solzhenitsyn, Harvard University Commencement Address 1978.

Re-reading this (for the first time in more than a decade, I suspect) right after reading the latest blog from Fr. Stephen Freeman, was powerful, especially substituting “modernity” for “the West.” Especially were I to make it “the modern West,” I doubt that Solzhenitsyn would object.

I know that Solzhenitsyn is not alone, because I follow the (rather occasional) blog of an American expatriate who is quite happy in post-Soviet Russia, with another friend drawn back to Georgia, where he was living with his family last I knew.

Make America Human (Again?).

* * * * *

Sailing on the sea of this present life, I think of the ocean of my many offenses; and not having a pilot for my thoughts, I call to Thee with the cry of Peter, save me, O Christ! Save me, O God! For Thou art the lover of mankind.

(From A Psalter for Prayer)

You can read most of my more impromptu stuff at here. It should work in your RSS aggregator, like Feedly, should you want to make a habit of it.

Motivated reasoning

If I had to name only one thing I have learned in my many years of making arguments, it would be this: You cannot convince people of anything that they sense it’s in their interest not to know. I thought about this often as I was reading Alex Morris’s Rolling Stone story about American evangelicals’ love of Trump.

… It is very much in the interest of Morris’s aunt, and in the interest of millions and millions of other people, not to know that we are, through our economic choices, bringing ruin to the planet that we’re supposed to be the stewards of. And so she doesn’t know. Like so many others, she makes a point of not knowing.

But I think the problem of motivated not-knowing isn’t found only on the conservative evangelical side of things. Here’s one passage from Morris’s essay that seems to be drawing a lot of attention:

“The white nationalism of fundamentalism was sleeping there like a latent gene, and it just came roaring back with a vengeance,” says [Greg] Thornbury. In Trump’s America, “‘religious liberty’ is code for protection of white, Western cultural heritage.”

In that second sentence, the clause “In Trump’s America” is a problem. What does it mean? In one sense, the entire nation is “Trump’s America” right now, whether we like it or not; but maybe Morris means something like “Americans who enthusiastically support Trump,” or “the parts of the country that are strongly supportive of Trump.” Impossible to tell. Thornbury didn’t use the phrase, but presumably he said something that led into his line about “religious liberty” as code for something else.

So the passage is unclear, but I’d like to know what Thornbury means. I’ve written a good deal about the importance of religious freedom on this blog and elsewhere — just see the tag at the bottom of this post — so does that mean that I am using that topic as “code for protection of white, Western cultural heritage”? If so: explain that to me, please.

Maybe there’s something that Greg Thornbury and Alex Morris have an interest in not knowing: that even if millions of white Americans abuse the concept of religious liberty, religious liberty could nevertheless be in some danger.

Alan Jacobs, who has much more than this to say, including ways in which fundamentalist Christian cranks are motivated to ignore environmental damage.

Seriously, read it all.

But Jacobs omits something: anyone who thinks Rolling Stone is prima facie a reliable interlocutor of Christianity, and especially of the religious right, deserves all the false certaintly and motivated ignorance he gains there. Rod Dreher kinda hits that, too.

* * * * *

Sailing on the sea of this present life, I think of the ocean of my many offenses; and not having a pilot for my thoughts, I call to Thee with the cry of Peter, save me, O Christ! Save me, O God! For Thou art the lover of mankind.

(From A Psalter for Prayer)

You can read most of my more impromptu stuff at here. It should work in your RSS aggregator, like Feedly, should you want to make a habit of it.

Gotcha! failure

Aaron Tang, a ConLawProf at U.C. Davis, opines in the very receptive New York Times: “Conservative Hypocrisy Makes Its Case at the Supreme Court.” The gist of the column is in the sub-headline: “Lawyers on the right are advancing arguments they once rejected on principle.”

Two problems with the column are (a) opportunistic arguments are nothing new (there’s a story about circuit-riding lawyer Abe Lincoln arguing a proposition for one client in the morning, its opposite for another client in the afternoon) and (b) progressive lawyers defending the laws in question are also advancing arguments they once rejected on principle.

Keep that in mind, though, and the cases Tang discusses are legitimately interesting. The Montana case seems like a particularly tough one for “conservatives.”

Montana had a “Blaine Amendment,” one of many 19th Century anti-Catholic state constitutional provisions that no public funding may be used directly or indirectly to aid any religious school. But “Montana’s 1972 constitutional convention overwhelmingly re-enacted the no-aid provision in order to protect religious institutions from state interference.”

A relatively recent legislature sought to circumvent the no-aid amendment by providing a (paltry) tax credit for scholarship funds for religious and secular schools, presumably reasoning that a tax credit prevents the money from ever becoming “public funding” subject to the provision.

The Montana Supreme Court reasoned otherwise, but mindful of SCOTUS precedents that states cannot treat religious institutions differently than similarly-situated secular institutions, struck down the whole program, not just the part allowing scholarship funds for religious schools.

I hope SCOTUS agreed to hear the case to say something like this:

No, no, no! We’re not going to sit a Super-Legislature. This case isn’t like our precedents.
The 1972 Constitutional Convention’s anti-entanglement rationale plausibly moots any constitutional infirmity of the bigoted original no-aid provision. (Dictum: events before and after 1972 arguably support Montana’s instinct that public funds come with strings attached, and we’re not going to second-guess the Montana Supreme court that tax credits are public enough to fall under the 1972 ban.)
There is no Federal constitutional right for private schools to get public support in any form, including tax credits.

Some of my favorite Colleges don’t take public aid in any form, and I think they’re the better for it, net. Further, it would not be good for the country for the high court, fortified by two Federalist Society-vetted nominees, to unduly embolden activist conservative litigators just because prior courts have emboldened progressive litigators.

Caveat: I have not read the briefs — an omission that will not be true of any of the Justices.

* * * * *

Sailing on the sea of this present life, I think of the ocean of my many offenses; and not having a pilot for my thoughts, I call to Thee with the cry of Peter, save me, O Christ! Save me, O God! For Thou art the lover of mankind.

(From A Psalter for Prayer)

You can read most of my more impromptu stuff at here. It should work in your RSS aggregator, like Feedly, should you want to make a habit of it.