The New Declaration of Independence

supreme court

Imperator Supremum Iudictorium

I wonder what it looked like, the day the Republic ended and Octavius began his reign.  Did commerce still move, did crops still grow?  Did Romans conduct their affairs the day after Octavius became Augustus in 27 B.C. largely the way they had the previous day?  Did they dismiss the arrogation of power to “the August One” as a mundane political intrigue with no immediate significance for the chores to be accomplished before nightfall?  Did anything tell them they would go to bed a Republic’s citizens but rise an Empire’s subjects?

I suspect the answers are Yes, Yes, Yes, and No.  Mostly it’s difficult to see sea-changes when you are in the midst of them.  Those who are busy with the routine of living don’t pay close attention to the portents, and those who closely follow the portents are often so far down in the weeds that it’s hard to stitch the details into a coherent picture.

But there are times we must set aside routine, we must clamber up from the weeds, and give events our concerted attention.  Of these times, I think, are the last few days.

If we are to take them at their word, our Supreme Court justices have announced a new relationship between them and us.  It is, in a sense, a new Declaration of Independence.  But in contrast to the original, this one declares the State’s independence from the people from whom it derives its authority.  The justices all seem to agree this has happened, although they are divided on whether it is a positive development.  In light of this apparent agreement, we would do well to take some time to digest its meaning in a careful and deliberate way.

There is a terrible secret that lies at the heart of our Constitution, and it is this:  It is extraordinarily fragile.  When we formed the government of the United States, we furnished it with enough power that, should it wish, it could master us in a moment.  So, to maintain our mastery over it, we lent it only limited authority to use that power, and what authority we delegated, we divided between three branches that we set at odds with each other.   Diffused and finite, we trusted the authority could not be usurped or enlarged.

The weakness lies in the unavoidable fact that the chains we forged to restrain the State are made of nothing but words.  We wrote our words into a Constitution, and entrusted it to people who, we believed, would be faithful.  We regularly send our representatives to Washington to adopt new words of law with the expectation they will conform to the Constitution and be obeyed by all.  We appoint judges, who we commission to do one thing, and one thing only – apply the words of law to the cases before them, subject always to the words of the Constitution.  And finally, we elect a president to carry those words into practice.

But words have no force of their own.  Their strength comes entirely from the good faith of those to whom we entrust them.  It would be, therefore, a matter of the gravest importance should our public servants decide they are not bound by the words of law we give.

It is true that those servants have been chafing at our words’ restrictiveness for decades.  But they have at least maintained the pretense that they are subject to them.  It appears they may no longer feel the need to do so.

On Thursday, the Supreme Court released its opinion in the case King v. Burwell, 576 U.S. ___.  The Court’s task was to determine whether the law allowed tax credits for those who purchase health insurance from an exchange established by the federal government.  The law said the credits were available only for those who purchased a policy from “an Exchange established by the State.” (Emphasis supplied).

The Court acknowledged that the language, as written, did not include federally-created exchanges.  It also admitted that giving the language its natural meaning would make tax credits unavailable to those who purchased their insurance on a federal exchange.

Nonetheless, out of a desire to see Obamacare succeed, the Court chose to loose itself from the statute’s words.  “Those credits are necessary for the Federal Exchanges to function like their State Exchange counterparts,” the Court said, which “compel[s] us to depart from what would otherwise be the most natural reading of the pertinent statutory phrase.”  Of course, we never gave the Court authority to say what the words of law ought to be, only what they are.

That distinction means all the world.  If the Justices do not understand themselves as bound by the words we give them, that they may instead remake them as they believe they ought to be, then we have no tools by which to make our laws known.  No way to inform our public servants of their duties and obligations.  No way to constrain the State.

If words can no longer command the Court, then the Court acts independently of us – we, the People, who are the givers of the law.  A declaration that the Court will not be constrained by the words of the law is a declaration that it has itself become the law.  And if the Court is the law, then we are not a self-governing people.

Which is precisely what Justice Scalia said has now occurred.  In his dissent from Friday’s opinion in Obergefell v. Hodges (which mandated the nationwide recognition of same-sex marriages), Justice Scalia observed that, at long last, we have reverted to the status of subjects:

Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact—and the furthest extension one can even imagine—of the Court’s claimed power to create “liberties” that the Constitution and its Amendments neglect to mention. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.

We, today, no longer have a democracy, much less a republic.  Justice Scalia said the Court’s opinion was “a naked claim to legislative – indeed, super-legislative – power; a claim fundamentally at odds with our system of government. . . . . A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.”

Justice Thomas sees it too.  He recognized that the Court declared its independence from, and mastery over, we who created it:  “This distortion of our Constitution not only ignores the text, it inverts the relationship between the individual and the state in our Republic.”

This is the fragility of our system, the powerlessness of our words.  All it took for our constitutional order to dissolve was the discovery by a handful of lawyers that they don’t really need to submit to the words of law.  And so the Court is now our Ruler, and we its subjects.

How big of a problem is this?  Well, Justice Scalia puts Friday’s decision on the same plane of unlawfulness as the act that catalyzed our Revolution.  He says this “judicial Putsch” violates “a principle even more fundamental than no taxation without representation:  no social transformation without representation.”

Justices Scalia and Thomas left us no room to doubt what has happened.  They are both pointing to the gauntlet the Court threw at our feet, the challenge to our claim to be free people.  If we allow this usurpation to pass unremedied, if we do not pick up the gauntlet, then our ancestors and offspring will condemn us as the generation that surrendered the last, best hope of mankind.

So.  Is it time to go back to the beach, or should we do something about this?

Self-Destructive Folly

See the Obergefell v. Hodges opinion here:

The first premise of this Court’s relevant precedents is that the right to personal choice regarding marriage is inherent in the concept of individual autonomy.

That is why you fail.

Autonomous individuals don’t get married. They don’t even exist. And, at any rate, any autonomous individuals that might exist are ipso facto dysfunctional in civil society. We all depend, and we all either conform to certain reality-based norms, or we damage ourselves and others in our folly.

This nation takes folly for law, and treats law as folly.

Now, at its highest level.

Lord, have mercy.

On an appointed day Herod put on his royal robes, took his seat upon the throne, and made an oration to them. And the people shouted, “The voice of a god, and not of man!” Immediately an angel of the Lord smote him, because he did not give God the glory; and he was eaten by worms and died.

But the word of God grew and multiplied.

(source: Acts 12:21-24 RSVCE)

Lord, have mercy.

Chesterton and Francis, without further comment

11. Francis helps us to see that an integral ecology calls for openness to categories which transcend the language of mathematics and biology, and take us to the heart of what it is to be human. Just as happens when we fall in love with someone, whenever he would gaze at the sun, the moon or the smallest of animals, he burst into song, drawing all other creatures into his praise. He communed with all creation, even preaching to the flowers, inviting them “to praise the Lord, just as if they were endowed with reason”.[19] His response to the world around him was so much more than intellectual appreciation or economic calculus, for to him each and every creature was a sister united to him by bonds of affection. That is why he felt called to care for all that exists. His disciple Saint Bonaventure tells us that, “from a reflection on the primary source of all things, filled with even more abundant piety, he would call creatures, no matter how small, by the name of ‘brother’ or ‘sister’”.[20] Such a conviction cannot be written off as naive romanticism, for it affects the choices which determine our behaviour. If we approach nature and the environment without this openness to awe and wonder, if we no longer speak the language of fraternity and beauty in our relationship with the world, our attitude will be that of masters, consumers, ruthless exploiters, unable to set limits on their immediate needs. By contrast, if we feel intimately united with all that exists, then sobriety and care will well up spontaneously. The poverty and austerity of Saint Francis were no mere veneer of asceticism, but something much more radical: a refusal to turn reality into an object simply to be used and controlled.

(source: Laudato si’ (24 May 2015))

This is the first principle of democracy: that the essential things in men are the things they hold in common, not the things they hold separately. And the second principle is merely this: that the political instinct or desire is one of these things which they hold in common. Falling in love is more poetical than dropping into poetry. The democratic contention is that government (helping to rule the tribe) is a thing like falling in love, and not a thing like dropping into poetry. It is not something analogous to playing the church organ, painting on vellum, discovering the North Pole (that insidious habit), looping the loop, being Astronomer Royal, and so on. For these things we do not wish a man to do at all unless he does them well. It is, on the contrary, a thing analogous to writing one’s own love-letters or blowing one’s own nose. These things we want a man to do for himself, even if he does them badly. I am not here arguing the truth of any of these conceptions; I know that some moderns are asking to have their wives chosen by scientists, and they may soon be asking, for all I know, to have their noses blown by nurses. I merely say that mankind does recognize these universal human functions, and that democracy classes government among them. In short, the democratic faith is this: that the most terribly important things must be left to ordinary men themselves—the mating of the sexes, the rearing of the young, the laws of the state. This is democracy; and in this I have always believed.

(source: Orthodoxy – Christian Classics Ethereal Library)

St. Francis walked the world like the Pardon of God. I mean that his appearance marked the moment when men could be reconciled not only to God but to nature and, most difficult of all, to themselves. For it marked the moment when all the stale paganism that had poisoned the ancient world was at last worked out of the social system. He opened the gates of the Dark Ages as of a prison of purgatory, where men had cleansed themselves as hermits in the desert or heroes in the barbarian wars. It was in fact his whole function to tell men to start afresh and, in that sense, to tell them to forget. If they were to turn over a new leaf and begin a fresh page with the first large letters of the alphabet, simply drawn and brilliantly coloured in the early mediaeval manner, it was clearly a part of that particular childlike cheerfulness that they should paste down the old page that was all black and bloody with horrid things. For instance, I have already noted that there is not a trace in the poetry of this first Italian poet of all that pagan mythology which lingered long after paganism. The first Italian poet seems the only man in the world who has never even heard of Virgil. This was exactly right for the special sense in which he is the first Italian poet. It is quite right that he should call a nightingale a nightingale, and not have its song spoilt or saddened by the terrible tales of Itylus or Procne. In short, it is really quite right and quite desirable that St. Francis should never have heard of Virgil. But do we really desire that Dante should never have heard of Virgil? Do we really desire that Dante should never have read any pagan mythology? It has been truly said that the use that Dante makes of such fables is altogether part of a deeper orthodoxy; that his huge heathen fragments, his gigantic figures of Minos or of Charon, only give a hint of some enormous natural religion behind all history and from the first foreshadowing the Faith. It is well to have the Sybil as well as David in the Dies Irae. That St. Francis would have burned all the leaves of all the books of the Sybil, in exchange for one fresh leaf from the nearest tree, is perfectly true; and perfectly proper to St. Francis. But it is good to have the Dies Irae as well as the Canticle of the Sun.


But there is one thing that I have never from my youth up been able to understand. I have never been able to understand where people got the idea that democracy was in some way opposed to tradition. It is obvious that tradition is only democracy extended through time. It is trusting to a consensus of common human voices rather than to some isolated or arbitrary record. The man who quotes some German historian against the tradition of the Catholic Church, for instance, is strictly appealing to aristocracy. He is appealing to the superiority of one expert against the awful authority of a mob. It is quite easy to see why a legend is treated, and ought to be treated, more respectfully than a book of history. The legend is generally made by the majority of people in the village, who are sane. The book is generally written by the one man in the village who is mad. Those who urge against tradition that men in the past were ignorant may go and urge it at the Carlton Club, along with the statement that voters in the slums are ignorant. It will not do for us. If we attach great importance to the opinion of ordinary men in great unanimity when we are dealing with daily matters, there is no reason why we should disregard it when we are dealing with history or fable. Tradition may be defined as an extension of the franchise. Tradition means giving votes to the most obscure of all classes, our ancestors. It is the democracy of the dead. Tradition refuses to submit to the small and arrogant oligarchy of those who merely happen to be walking about. All democrats object to men being disqualified by the accident of birth; tradition objects to their being disqualified by the accident of death. Democracy tells us not to neglect a good man’s opinion, even if he is our groom; tradition asks us not to neglect a good man’s opinion, even if he is our father. I, at any rate, cannot separate the two ideas of democracy and tradition; it seems evident to me that they are the same idea. We will have the dead at our councils. The ancient Greeks voted by stones; these shall vote by tombstones. It is all quite regular and official, for most tombstones, like most ballot papers, are marked with a cross.

I have first to say, therefore, that if I have had a bias, it was always a bias in favour of democracy, and therefore of tradition. Before we come to any theoretic or logical beginnings I am content to allow for that personal equation; I have always been more inclined to believe the ruck of hard-working people than to believe that special and troublesome literary class to which I belong. I prefer even the fancies and prejudices of the people who see life from the inside to the clearest demonstrations of the people who see life from the outside. I would always trust the old wives’ fables against the old maids’ facts. As long as wit is mother wit it can be as wild as it pleases.

(source: Orthodoxy – Christian Classics Ethereal Library)

By this thesis, in short, the coming of St. Francis was like the birth of a child in a dark house, lifting its doom; a child that grows up unconscious of the tragedy and triumphs over it by his innocence. In him it is necessarily not only innocence but ignorance. It is the essence of the story that he should pluck at the green grass without knowing it grows over a murdered man or climb the apple-tree without knowing it was the gibbet of a suicide. It was such an amnesty and reconciliation that the freshness of the Franciscan spirit brought to all the world. But it does not follow that it ought to impose its ignorance on all the world. And I think it would have tried to impose it on all the world. For some Franciscans it would have seemed right that Franciscan poetry should expel Benedictine prose. For the symbolic child it was quite rational. It was right enough that for such a child the world should be a large new nursery with blank white-washed walls, on which he could draw his own pictures in chalk in the childish fashion, crude in outline and gay in colour; the beginnings of all our art. It was right enough that to him such a nursery should seem the most magnificent mansion of the imagination of man. But in the Church of God are many mansions.

Every heresy has been an effort to narrow the Church. If the Franciscan movement had turned into a new religion, it would after all have been a narrow religion. In so far as it did turn here and there into a heresy, it was a narrow heresy. It did what heresy always does; it set the mood against the mind. The mood was indeed originally the good and glorious mood of the great St. Francis, but it was not the whole mind of God or even of man. And it is a fact that the mood itself degenerated, as the mood turned into a monomania.



15. It is my hope that this Encyclical Letter, which is now added to the body of the Church’s social teaching, can help us to acknowledge the appeal, immensity and urgency of the challenge we face. I will begin by briefly reviewing several aspects of the present ecological crisis, with the aim of drawing on the results of the best scientific research available today, letting them touch us deeply and provide a concrete foundation for the ethical and spiritual itinerary that follows. I will then consider some principles drawn from the Judaeo-Christian tradition which can render our commitment to the environment more coherent. I will then attempt to get to the roots of the present situation, so as to consider not only its symptoms but also its deepest causes. This will help to provide an approach to ecology which respects our unique place as human beings in this world and our relationship to our surroundings. In light of this reflection, I will advance some broader proposals for dialogue and action which would involve each of us as individuals, and also affect international policy. Finally, convinced as I am that change is impossible without motivation and a process of education, I will offer some inspired guidelines for human development to be found in the treasure of Christian spiritual experience.

(source: Laudato si’ (24 May 2015))

Not Every Stigma Is a Heckler’s Stigma



No time for a long post, but I need to grab an opportunity to respond to Dan before I lose a whole week. I’m afraid he’s misconstrued my position.

He attributes to me the following position that I do not hold:

a true defense of free speech must necessarily foreclose any argument that it might be imprudent to use one’s right to speak freely in a particular way

I said no such thing.

He also attributes to me this position that I do not hold:

any social stigma you might earn for what you say is an unacceptable attack on the right to speak freely

I said no such thing.

Here is what I said:

Irrational mobs that are attempting to destroy free speech rights must not be permitted to dictate which speech we shall condemn as evil, nor the time, place and manner in which we condemn it.

The distinction does not seem to me to be a very fine one. Not every stigma is a “heckler’s stigma.” I object not to the maintaining of stigmas but to the abuse of the stigmatization process by people whose real agenda is to destroy free speech.

In other words, I am claiming my free speech right to stigmatize only what I think worth stigmatizing, when and where and how I think it worth stigmatizing. I may think Charlie Hebdo is awful, but I refuse to say “Charlie Hebdo is awful” if the time, place and manner of my doing so gives aid and comfort to totalitarians (of either the jihadist or secularist variety).

As if on cue, Mark Steyn posts today about a scientific genius who just had his career destroyed because of one (1) bad remark, for which he apologized to no avail. The remark was indeed a bad one, but I refuse to say so if saying so gives aid and comfort to the totalitarians seeking to destroy him.