Friday Potpourri 8/24/18

Do you support religious liberty or LGBT individuals? It needn’t be an either–or proposition. Just as many who identify as LGBT hold conservative values, so many religious social conservatives count LGBT individuals among their beloved friends, family, and colleagues. This allows conservatives to take a compassionate, solution-oriented approach to addressing the problems faced by LGBT individuals. Such an approach can negate the need to treat sexual orientation and gender identity as a protected class.

…

Andrew Koppelman, an LGBT advocate [and Northwestern University Law professor], admits that blanket denial of service for LGBT people is rare:

Hardly any of these cases have occurred: a handful in a country of 300 million people. In all of them, the people who objected to the law were asked directly to facilitate same-sex relationships, by providing wedding, adoption, or artificial insemination services, counseling, or rental of bedrooms. There have been no claims of a right to simply refuse to deal with gay people.

Our society is already fairly tolerant, with next to no cases of people flat-out denying service to LGBT individuals solely on the basis of their sexual orientation or gender identity. What the Left often fails to realize is that true tolerance cuts both ways. Existing SOGI policies should be narrowly interpreted so that they act as shields against truly discriminatory practices, not as swords to punish religious beliefs. This approach promotes mutual tolerance and penalizes no persons for either their identity or their beliefs.

Monica Burke and Jared Eckert, Don’t Typecast Conservatives: They, Too, Respect the Dignity of LGBT Persons, at National Review online.

Writing of the Colorado Civil Right Commission, which is pursuing Jack Phillips again at the behest of Transgender Troll, Esq.:

[T]he governor makes all appointments to the commission unilaterally and the commissioners don’t have to be attorneys or have virtually any other qualifications except that a majority must be from a traditionally discriminated class, which as of 2008 included sexual orientation and transgender status.

But there is also no requirement for diversity of class, thus, the governor could appoint a majority or even all commissioners who openly identify as LGBT and seek a seat on the commission specifically because of that identification. Religion is also a traditionally protected class, so I’d love to see a future governor appoint a majority of commissioners who are specifically Christian and watch how fast the Democrats would try to shut down the Commission then.

Jenna Ellis. Or we could, maybe, try that better way.

Will we try the way of coercion or of civil society?

Unlike some of my fellow conservatives, I resist the idea that SOGI (Sexual Orientation and Gender Identity) anti-discrimination laws are part of a conspiracy to eradicate authentic Christianity. I say that even though the Colorado Civil Rights Commission was quite explicitly bigoted against Jack Phillips and so blinded by ideology as to be incapable of acknowledging that they were not punishing a homophobe but trying to coerce a conscientious artist into creating a work of art to celebrate what his conscience could not celebrate.

No, the impetus for SOGI laws lies in the felt need of “sexual minorities” for explicit affirmation — and some outrage, real or confected, when they get toleration instead of whole-hearted affirmation in every corner of civil society they choose to visit.

It’s heartening to me that some progressives of good will are starting to see, if not exactly what I see, at least that the stick of anti-discrimination laws is producing some real injustices.

We direct the fashionable outcry of each generation against those vices of which it is least in danger and fix its approval on the virtue nearest to that vice which we are trying to make endemic. The game is to have them running about with fire extinguishers whenever there is a flood, and all crowding to that side of the boat which is already nearly gunwale under.

Screwtape, to Wormwood, via Shane Morris.

A Catholic priest who had finished morning prayers inside an Indiana church earlier this week said he was attacked by a man who told him, “This is for all the little kids.”

Then, he said, he blacked out.

The priest, Rev. Basil John Hutsko, was knocked unconscious by an unknown person about 9 a.m. Monday at St. Michael Byzantine Catholic Church in Merrillville, Indiana, police told the Chicago Tribune.

Hutsko, who was taken to a hospital, was left with bruises on his face and body.

(USA Today, 8/24/18)

Cynthia Nixon’s challenge to New York governor Andrew Cuomo nudges the thinking adult toward that least conservative of all political sentiments: “Couldn’t be any worse.”

Things can always be worse.

But it is not obvious how or why Nixon, a celebrity neophyte, would be worse than Cuomo, a corrupt and incompetent heir to a half-assed political legacy. Nixon at least can boast of being an excellent actress — what exactly is it Andrew Cuomo is good at? Choosing his parents?

…

Of course she’s a naïf, and a borderline jackass. She’s new to this. But clearing the bar of “preferable to Andrew Cuomo” is not that difficult.

…

This is a new day in politics, and nobody is quite sure how it will shake out.

Kevin D. Williamson, who’s fun to read even when writing of matters of no immediate personal concern.

Last Thursday, hundreds of newspapers nationwide simultaneously published editorials attacking Mr. Trump in the guise of promoting a free press. The president regularly accuses news outlets of biased coverage ….

Jason Riley, WSJ (emphasis added).

Trump calls the press “Enemies of the People” and purveyors of “fake news.” His followers curse, flip-off and menace the press. Riley’s bland version is the sort of “nothing to see here; move along now” spin that makes me say the Wall Street Journal, no less than the New York Times, is a bit unhinged.

The Orthodox theologian Alexander Schmemann, in his wonderful little book For the Life of the World, defines secularism as the negation of man as a “worshipping being”. He correctly points out that many secularists “believe in God” (heck, as I often tell my students, “even Satan believes in God”), and that they may even have a sense of the spiritual and a semblance of a prayer life. Overt, full-blown, ideological atheism is still a minority position in America. But what makes these believers in God “secular” is their denial of the important of man as “homo adorans”. They deny that the very essence of what it means to be human involves giving “true worship” to God or that such worship constitutes the very perfection of who we are. Liturgy is thus robbed of any divine meaning or significance (for good reason do we call it “the Divine Liturgy”) and it is reduced in stature to a mere ritualized projection of our own subjective “tastes” in matters religious, on an equal footing with my preferences for Bourbon over Scotch, and Quarter Pounders over Big Macs: de gustibus non est disputandum.

…

And the secular ethos cuts across all ideological spectrums in the Church and deep into her soul ….

Larry Chapp in a letter to Rod Dreher. Right about now, I’m feeling pretty good about “homo adorans” in the header of this blog.

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Our lives were meant to be written in code, indecipherable to onlookers except through the cipher of Jesus.

Greg Coles.

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.

Potpourri 8/22/18

As a means of exposing those who insist of seeing Russian President Vladimir Putin as a reincarnation of Josef Stalin, it would be good to look at Putin’s relationship with the great Soviet dissident and anti-communist hero, Alexander Solzhenitsyn, whose centenary we celebrate this year.

…

Discussing the cooling of relations between Russia and the West, Solzhenitsyn’s analysis of the history of the previous fifteen years highlighted the sharpness with which he viewed contemporary events. When he had returned to Russia he discovered that the West was “practically being worshipped.” This was caused “not so much by real knowledge or a conscious choice, but by the natural disgust with the Bolshevik regime and its anti-Western propaganda.” The positive view of many Russians towards the West began to sour following “the cruel NATO bombings of Serbia”: “It’s fair to say that all layers of Russian society were deeply and indelibly shocked by those bombings.” The situation worsened as NATO sought to widen its influence to the former Soviet republics. “So, the perception of the West as mostly a ‘knight of democracy’ has been replaced with the disappointed belief that pragmatism, often cynical and selfish, lies at the core of Western policies. For many Russians it was a grave disillusionment, a crushing of ideals.”

As for the West, it was “enjoying its victory after the exhausting Cold War” and was observing the anarchy in Russian under Gorbachev and Yeltsin. It seemed as though Russia was becoming “almost a Third World country and would remain so forever.” In consequence, the re-emergence of Russia as a political power caused unease in the West, a panic “based on erstwhile fears.” It was “too bad” that the West was unable to distinguish between Russia and the Soviet Union.

…

What more need be said? In Vladimir Putin’s Russia, the greatest classic of anti-communist literature is now compulsory reading in all high schools. If the same could be said of the high schools of the United States, we would not have the endemic historical and political ignorance that has led to the widespread sympathy for communism among young Americans. In light of this, and in light of Mr. Putin’s evident admiration for Solzhenitsyn, let’s not try to pretend that Russia is a communist nation. We don’t need to like Vladimir Putin. We don’t need to admire him. But we do need to acknowledge that Russia has moved on from evils of socialism, even as we are in danger of embracing those very same evils.

Joseph Pearce. Can there be any doubt that Putin 2018 is an improvement over Stalin 1948, or the whole sorry history of Russian Communism from the Revolution until collapse?

The great flaw in anti-sacramental thinking is its abstracted notion of “spiritual.” It is presumed that for something to be “spiritual,” it must have nothing to do with the material world. That “talking to Jesus” only consists in words spoken in our heads. In truth, it is a preference for the imaginary over the real. The Word did not become flesh only to get our attention so that we would no longer have anything to do with the material world. It is the Word who became flesh Who gives us His Body and His Blood, the waters of Baptism, the marriage bed, the Apostolic ministry, the oil of healing, the laying on of hands, the lifting of the voice and all such things.

Non-sacramental Christianity has a long history of delusional teaching and practices. If the encounter with God is primarily the stuff going on in my head, then the strange results are fairly predictable. Nothing is more subject to manipulation and delusion than our subjectivity ….

Fr. Stephen Freeman, A Mediated Presence – Thank God.

I was away from home this afternoon, but caught All Things Considered breaking the news that Michael Cohen would plead guilty and the jury had a Paul Manafort verdict.

(Fade to modest restaurant dinner.)

The silent TV is playing talking heads, claiming (via close captioning) that Cohen fingered Trump in his guilty plea.

Home again at 9:45 pm. Wall Street Journal (Michael Cohen Pleads Guilty, Says Trump Told Him to Pay Off Women) and New York Times (Michael Cohen Says He Arranged Payments to Women at Trump’s Direction) agree that Cohen fingered Trump. Meaning no respect to news on TV — no, actually, I do mean disrespect — only now do I believe the fact or the interpretation.

This should be huge, possibly leading to impeachment. But I have given up political prognosticating because I don’t understand the Vichy Republicans. And I’m not convinced that the cure of impeachment wouldn’t be worse than the disease of Trump anyway.

That’s all I have to say for now. If a gypsy cursed me with “May you live in interesting times,” I do believe the curse “took.”

On a brighter and unexpected note, Congress apparently is forgoing August recess to take up budget matters, passing non-controversial spending piecemeal, and doing so in bipartisan fashion.

It’s almost as if someone exercised forethought: “What if Trump ‘shut down’ government because we can’t agree on ‘the wall,’ but the shutdown was entirely harmless mostly because all the no-brainers were passed in August, before the President’s confected crisis of September?”

One cheer out of three.

Data point: Reader Matt in VA, a Rod Dreher reader who is non-celibate gay, agrees in substance with Daniel Mattson that, as Mattson put it, “men with homosexual tendencies find it particularly difficult to live out the demands of chastity.” Reader Matt’s version is:

I think it’s absolutely to be expected that a clergy full of gay men will find chastity harder than a clergy full of straight men. Again, it’s so much easier to have quick, furtive sex with another man than it is with a woman.

We’re still in a state of denial that make this controversial enough that only a gay man can say it with minimal blow-back. (Well, gay men and Camille Paglia.)

I shouldn’t say it even apart from political correctness because I can’t back it up except by citing Reader Matt, Mr. Mattson (which I have now done), and Ms. Paglia (who surely has said this somewhere or other). I have neither personal experience nor data nor scholarly literature.

I’m not sure how this relates to Eve Tushnet’s focus on the closet versus the orientation, but it seems to undermine her.

* * * * *

Our lives were meant to be written in code, indecipherable to onlookers except through the cipher of Jesus.

Greg Coles.

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.

Playbook for concealing truth

I have not succeeded in averting my gaze sufficiently from the Roman Catholic clergy sexual abuse crisis.

I think I’d be allowed to do so — I’m not Catholic, nor a prosecutor or a journalist — but I just can’t, not completely. I can only plead in mitigation that others are far more obsessed, for their own reasons.

From the Pennsylvania grand jury report released today, this especially infuriating excerpt (via Rod Dreher, who wrote the first paragraph):

We’ll start with this, from the introduction, in which the grand jury identified the strategy the Catholic Church used to, in the AG’s words “protect their institution at all costs.”

The strategies were so common that they were susceptible to behavioral analysis by the Federal Bureau of Investigation. For our benefit, the FBI agreed to assign members of its National Center for the Analysis of Violent Crime to review a significant portion of the evidence received by the grand jury. Special agents testified before us that they had identified a series of practices that regularly appeared, in various configurations, in the diocesan files they had analyzed. It’s like a playbook for concealing the truth:

First, make sure to use euphemisms rather than real words to describe the sexual assaults in diocese documents. Never say “rape”; say “inappropriate contact” or “boundary issues.”

Second, don’t conduct genuine investigations with properly trained personnel. Instead, assign fellow clergy members to ask inadequate questions and then make credibility
determinations about the colleagues with whom they live and work.

Third, for an appearance of integrity, send priests for “evaluation” at church -run psychiatric treatment centers. Allow these experts to “diagnose” whether the priest was a pedophile, based largely on the priest’s “self -reports,” and regardless of whether the priest had actually engaged in sexual contact with a child.

Fourth, when a priest does have to be removed, don’t say why. Tell his parishioners that he is on “sick leave,” or suffering from “nervous exhaustion.” Or say nothing at all.

Fifth, even if a priest is raping children, keep providing him housing and living expenses, although he may be using these resources to facilitate more sexual assaults.

Sixth, if a predator’s conduct becomes known to the community, don’t remove him from the priesthood to ensure that no more children will be victimized. Instead, transfer him to a new location where no one will know he is a child abuser.

Finally and above all, don’t tell the police. Child sexual abuse, even short of actual penetration, is and has for all relevant times been a crime. But don’t treat it that way; handle it like a personnel matter, “in house.”

That’s all I have to say at the moment.

* * * * *

Our lives were meant to be written in code, indecipherable to onlookers except through the cipher of Jesus.

Greg Coles.

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.

Sunken into mendacity

“You know I’m from Alabama—the home of the Southern Poverty Law Center, an organization that did important work in the South, vital work at a pivotal time,” the attorney general explained.

He admitted that “there were hate groups in the South I grew up in. They attacked the life, liberty, and the very worth of minority citizens.”

Sessions recalled working with the SPLC to secure the death penalty for a member of the Ku Klux Klan. “You may not know this, but I helped prosecute and secure the death penalty for a klansman who murdered a black teenager in my state. The resulting wrongful death suit led to a $7 million verdict and the bankruptcy of the Klu Klux Klan in the South. That case was brought by the Southern Poverty Law Center,” he said.

“But when I spoke to ADF last year, I learned that the Southern Poverty Law Center had classified ADF as a ‘hate group.’ Many in the media simply parroted it as fact,” the attorney general added. “Amazon relied solely on the SPLC designation and removed ADF from its Smile program, which allows customers to donate to charities.”

Sessions charged that the SPLC has “used this designation as a weapon and they have wielded it against conservative organizations that refuse to accept their orthodoxy and choose instead to speak their conscience.”

He powerfully added, “They use it to bully and intimidate groups like yours which fight for the religious freedom, the civil rights, and the constitutional rights of others.”

Then the attorney general addressed ADF directly. “You and I may not agree on everything—but I wanted to come back here tonight partly because I wanted to say this: you are not a hate group,” Sessions declared.

Then he made the case. “You have a 9-0 record at the Supreme Court over the past seven years—and that includes two of the most important cases of the last term,” the attorney general said. “Two of those nine cases were 7-2, one was per curiam, and one was 9-0. In the lower courts, you’ve won hundreds of free speech cases. That’s an impressive record. These are not fringe beliefs that you’re defending.”

Rather, “You endeavor to affirm the Constitution and American values.”

Tyler O’Neil, quoting Attorney General Jeff Sessions.

You’re right, Mr. Sessions, that I don’t agree with you on everything, but thank you for speaking the truth and sharing the “back-story.”

It irks me that NPR continues credulously to bring on “experts” from SPLC, one of its sponsors.

* * * * *

Our lives were meant to be written in code, indecipherable to onlookers except through the cipher of Jesus.

Greg Coles.

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.

Dear Christians, …

Dear Christians, thank you for feeding, housing, and caring for the poor, but unless you do it in the manner we prefer, advancing the worldview we prefer — even to the point of adopting the personnel policies we demand — we will use all the power of law and public shame to bring you into compliance. We’ll pass laws that violate your conscience. We’ll call you bigots or misogynists when you resist. And all the while, the fact that you actually do serve and sustain (physically and spiritually) millions of Americans will be lost and ignored.

…

And in response to each event, as Christians leave campus or adoption agencies close their doors, many of these same progressives will be puzzled. Why close? Why leave? Just change your policies. Can’t you provide Catholic care and contraception — and blame the state for making you do it?

But this fundamentally misunderstands the nature of serious faith ….

David French, describing an increasingly pervasive progressive attitude, instantiated by FiveThirtyEight here and here. (He also speculates on how cafeteria Christianity may have made the progressives think their demands reasonable.)

It is a silver lining in this wretched Administration that it has largely kept its promises to protect religious freedom. That ought not be an optional and partisan policy, but if the Democrats want to be evil and stupid, it’s their right, as it’s my right not to vote for them despite the horrid condition of the national GOP.

* * * * *

Our lives were meant to be written in code, indecipherable to onlookers except through the cipher of Jesus.

Greg Coles.

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.

Hauerwasian “modernity” today

We disagree. In truth, we not only disagree about conclusions, we disagree about the facts, about how the facts are to be considered, what, indeed, constitutes a fact, what constitutes considering, and so on. We are a fragmented society whose fragmentation is becoming a major spiritual force in the lives of its people.

…

The fragmentation of the modern mind (even within itself) is just that – modern. Of course, a new consensus has been suggested: that we all agree that not agreeing is normal. Stanley Hauerwas places this at the very heart of the meaning of modernity:

By modernity, I mean the project to create social orders that would make it possible for each person living in such orders “to have no story except the story they choose when they have no story.” Wilderness Wanderings, 26

This is proving to be the most destructive aspect of the modern world. “To have a story” requires that someone else consent to the story – we do not live alone (even when we pretend that is our story). The only means of generating a consensus that has no basis other than “the story I choose,” is coercion. The social cohesion of consensus is being replaced by various versions of coerced agreement. We are angry.

This is not a game Christians can win, nor is it a game Christians should want to play. The Christian witness is not to a story we choose ….

Fr. Stephen Freeman, Consent to Reality.

Hauerwas’ definition of modernity (emphasis added) is priceless:

It echoes or anticipates Justice Kennedy’s “Mystery Passage”: “At 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.”
It distills the essence of attacks on the sexual binary, whereby 50 or more fanciful and/or ineffable “genders” (with corresponding pronouns) have been invented.
Our consent to the gender-multiplying gaslighting is indeed being coerced. We would, after all, be committing the ultimate dignitary assault, denying the storytellers’ very existence as they’d put it, were we allowed to say “That’s bullshit!” or even “Very nice, dearie. Run along now.”

I’ll try not to forget Hauerwas’ definition again.

UPDATE: Point 1 on Hauerwas’ definition of modernity included “I don’t know when Hauerwas first wrote it, but I’m 99% positive it was before the collection Fr. Stephen cites and I suspect it was before Planned Parenthood v. Casey (the source of Kennedy’s maudlin philosophizing).” I had seen the date of a second or subsequent addition of Wilderness Wanderings. The first edition, I now noticed, was 1998, and I suspect it was the first publication of that definition.

* * * * *

Learning how to think really means learning how to exercise some control over how and what you think. It means being conscious and aware enough to choose what you pay attention to and to choose how you construct meaning from experience. Because if you cannot exercise this kind of choice in adult life, you will be totally hosed.

(David Foster Wallace via Jason Segedy, Why I’m Leaving Twitter Behind.)

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.

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.

* * * * *

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.

‘Zat all you got?

Brett Kavanaugh participated in an aggressive investigation of Bill Clinton under Ken Starr in his late 20s or early 30s.
He thereafter served in Dubya’s White House and gained a much greater appreciation of the weighty duties of the office (and what, perhaps, Bill Clinton could have done had he not been besieged legally).
So in 2009, when a Democrat was President (and he decidedly was not in the White House), Kavanaugh published a Law Review article suggesting that Congress should pass a law exempting the President from personal legal distractions until he leaves office.
So Brett Kavanaugh’s change of mind on this issue is not a cynical effort to endear him to Donald Trump, and the chance that he thinks Judges may exempt the President without Congressional legislation is very slim.

The New York Times Daily podcast Wednesday was very disappointing on these matters, only once mentioning the 2009 date of the law review article, not noting that Barack Obama was then President, and generally hinting at a convenient and politically ambitious conversion.

Seriously, Times: Is that all you’ve got?

UPDATE: No, it’s not all the Left has. It took me about 10 seconds to decide that deleting this blog entry, upon learning the followng salient fact, would be dishonest, as I’ve tried to be an honest broker with my ideological cards on the table.

From that Law Review Article:

Even in the absence of congressionally conferred immunity, a serious constitutional question exists regarding whether a President can be criminally indicted and tried while in office.

Expect to hear that quoted back during confirmation hearings. Expect also to hear that it was a footnote acknowledgement, not a principal argument.

* * * * *

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.

* * * * *

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.