In this lecture, Robinson explores and reframes our historical understanding of the Reformed tradition and its relationship to “Christian liberalism.” She says,
Contrary to entrenched assumption, contrary to the conventional associations made with the words Calvinist and Puritan, and despite the fact that certain fairly austere communities can claim a heritage in Reformed culture and history, Calvinism is uniquely the fons et origo of Christian liberalism in the modern period, that is, in the period since the Reformation. And this liberalism has had its origins largely in the Old Testament. This is a bold statement, very much against the grain of historical consensus. Though I acknowledge that it may be indefensible in any number of particulars, I will argue that in a general sense it is not only true, but a clarification of history important to contemporary culture and to that shaken and diminishing community, liberal Protestantism.
She traces this idea of Christian liberalism to the Reformation ideas about generosity and responsibility. She notes,
But in Renaissance French, libéral, libéralité, meant “generous, generosity.” And of course the word occurs in the English Puritan translations, the Matthew’s Bible and the Geneva Bible, which were followed in their use of the term by the 1611 Authorized Version. The word occurs in contexts that urge an ethics of non-judgmental, non-exclusive generosity.
The point here does not apply to non-exclusivity of doctrine (which is how it is typically understood, and applied as she notes in the context of figures like Adolf von Harnack). The point is rather that Christian liberalism, as informed by the Reformed reception of the biblical witness, is that it is focused on a vision of social life and culture.
As Robinson says, “All this is of interest because the verses I have quoted and the word liberal itself, supported by the meaning the verses give to it, are central to American social thought from its beginning.”
When we think of rule of law failure, countries like Zimbabwe and Somalia come to mind. But as Acton Research Director Samuel Gregg points out in his latest piece over at Public Discourse, rule of law can also be subtly eroded in wealthy countries. The negative consequences for risk-taking, entrepreneurship, and long term investment, he says, can be far-reaching.
Risk is an inherent part of the workings of market economies. But Gregg notes that’s not the same thing as uncertainty:
Measurable risks are . . . no deterrent to the making of economic choices. If we take them seriously, they help us to calibrate our economic choices to be consistent with our responsibilities, resources, and opportunities. The same measurements also allow us to distinguish between prudent risk takers and the reckless, and reward them appropriately. Uncertainty, by contrast, involves those risks that cannot be quantified. It can occur either because of the sheer complexity of a given situation or because the subject matter cannot be reasonably measured. As long as a situation of uncertainty persists, it will deter many people from even considering whether to take economic risks.
Uncertainty in America, according to Gregg, is being magnified by the sheer complexity of laws such as the United States Internal Revenue Code:
A tax code of this size and complexity which is subject to so many sources of potentially conflicting official and semi-official explanations is bound to embody significant contradictions, and offers considerable scope for arbitrary decision-making. Uncertainty is the result. It’s also valid to claim that the same tax code may well be impossible for large numbers of honest law-abiding citizens to understand and comply with—not to mention difficult for conscientious civil servants to administer justly. As a result, many people may unintentionally violate the law or simply choose to forgo making any number of potentially wealth-creating opportunities for fear of violating the law.
Another example is the thousands upon thousands of pages of legislation being passed by Congress every year. As Gregg writes:
Then there are the rule-of-law problems associated with the sheer volume of law that directly shapes American economic life. The 2010 healthcare reform legislation, for instance, amounted to 2,700 pages. Not far behind it in length was the 2010 financial overhaul act: a mere 2,300 pages. More than a few legislators have confessed to never having read either piece of legislation in its entirety. Nor should we assume any great familiarity on their part with the thousands of pages of legislation which these acts superseded, integrated, or reinterpreted. The possibility that many laws governing healthcare and financial services have subsequently been rendered unclear, inconsistent, and impossible to comprehend is high.
These erosions of rule of law, Gregg says, result in large incentives not to take risks and not to make long-term investments. It also encourages entrepreneurs to look elsewhere for a more friendly, stable and comprehensible legal environment.
How does one determine whether a law is just or unjust? A just law is a man-made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in the terms of St. Thomas Aquinas: An unjust law is a human law that is not rooted in eternal law and natural law. Any law that uplifts human personality is just. Any law that degrades human personality is unjust.
The Witherspoon Institute has announced today its project, “Natural Law, Natural Rights, and American Constitutionalism,” which “will serve as an online resource center for students, teachers, and educated citizens to learn about the intellectual traditions of natural law and natural rights, particularly within American political and constitutional history.”
The current list of essays by contributors is expansive and impressive, and includes an essay by Acton’s own director of research Sam Gregg, “Natural Law and the Law of Nations.” Be sure to check out this resource from the Witherspoon Institute. I’m eager to see how the site develops and grows. I’m also interested in seeing who will write the currently missing essay (or set of essays) on the Reformation and natural law (including modern Protestantism and natural law). Sigmund’s essay currently covers the period, but much more needs to be said.
Currently the “Early Modern Liberal Roots of Natural Law” primary source section includes Locke, Hobbes, and Montesquieu. This is of course an important stream of natural-law thinking in the early modern era, but hardly the only one and certainly not the only one with later influence.
Additionally, to be of more scholarly use, I think the primary source collection should point toward digitally-accessible forms. I talk about this in the context of theology and economics in an editorial in the latest issue of the Journal of Markets & Morality, “Printed Source and Digital Resource in Economics and Theology” (PDF), and point especially towards the example of the Post-Reformation Digital Library (see, for instance, the pages on Locke and Hobbes).
…a judge has tossed out the wiretapping claims pointing out that there was no expectation of privacy out in public.
“Those of us who are public officials and are entrusted with the power of the state are ultimately accountable to the public,” the judge wrote. “When we exercise that power in public fora, we should not expect our actions to be shielded from public observation.”
There’s more here and here on the question of law enforcement and ‘citizen photojournalism.’
In this week’s Acton Commentary, Kevin Schmiesing looks at the exchange between Supreme Court nominee Elena Kagan and Sen. Tom Coburn over the interpretation of the Constitution’s Commerce Clause.
Elena Kagan’s Revealing Commerce Clause Evasion
by Kevin E. Schmiesing Ph.D.
Many Americans have a vague sense that the United States has drifted far from its constitutional origins. Every once in a while, something happens that prods us to recognize just how far we’ve gone.
Such was the case last week, during the Senate hearings on Supreme Court nominee Elena Kagan. One of the most widely circulated C-Span video clips was Senator Tom Coburn’s insistent question as to whether the Constitution’s commerce clause permitted Congress to pass a hypothetical law dictating that all Americans must eat a prescribed number of fruits and vegetables every day.
Kagan was clever enough to understand that what Coburn was really asking was, “Is it possible to justify the continued expansion of congressional powers—in particular recent health care reform legislation—on the basis of the authority granted by the commerce clause?” Kagan replied that the fruits and vegetables measure would be “dumb” law. She didn’t dare suggest that it would be unconstitutional, however, for she rightly recognized that she would be backing herself into a judicial corner. How many laws might she have to strike down as Supreme Court justice if she followed a “strict” interpretation of the Constitution?
Thus we’ve come to a point at which a Supreme Court nominee cannot bring herself to condemn a manifestly totalitarian law, because doing so would be utterly inconsistent with federal jurisprudence over the last 80 years. Kagan’s response shines a spotlight on the fact that the Constitution exercises little restraint upon the activities of our national government. This is dangerous territory.
There are rearguard actions from time to time. The Court invalidated campaign finance reform early this year, judging it to be a violation of first amendment rights—for which the justices were upbraided by President Obama on national television during a State of the Union Address. Yet, by and large, Congress acts with impunity to intervene in our economic affairs, usually justifying itself (in those rare cases when it feels the need to do so) by recourse to the commerce clause.
Perhaps it’s worth revisiting that passage from our founding document, on which millions of pages of federal regulation have been piled. Can it support such weight?
Congress shall have power, it says, “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” That’s it. The original purpose of this directive with respect to commerce “among the several States” was to ensure that there would be no interstate trade barriers. The formation of a vibrant national economy, the framers correctly understood, could not very well proceed when Ohio and Michigan erected tariffs against each other. So, the intent of the commerce clause was to protect the principle of free trade within the United States, leaving other financial and mercantile regulatory authority to each state.
Taking the Constitution seriously is important because the document forms the basis for the rule of law in this country. By ratifying it, the states and the citizens thereof affirmed the truth of a great paradox: Enacting limitations on ourselves is the only way to guarantee lasting and genuine freedom. It was a profoundly moral endeavor. The Christian notion of sin lay at the heart of many Americans’ belief that the tendency toward corruption and aggrandizement in government officials—and the potentially destructive whims of democratic majorities themselves—must be guarded against not only by promotion of personal virtue but also by legal instruments such as constitutional separation of powers and checks and balances.
For the most part, the Supreme Court honored the intent of the commerce clause until the 1930s, when the force of public sentiment and political pressure stemming from the Great Depression began to pry the lid off, loosing its potential as a Pandora’s box of federal government programs reaching into every corner of American life. In 1942, the Court defended a production quota on wheat set by the Department of Agriculture, upholding the prosecution of an Ohio farmer for growing too much. When he used his excess, the decision explained, he wouldn’t be buying that amount on the market. His flouting of the law thus affected interstate commerce.
Quod erat demonstrandum: The government can tell you what and how much to grow. Why can it not also tell you that you must purchase health insurance (and therefore what kind, and from which approved vendors)? And why can’t it tell you what and how much you may eat?
Our hope lies in our belief that, when a law is “dumb” enough, nine fellow Americans on the Supreme Court will have the good sense to strike it down. But we will be dependent on their sense alone. Although they will invoke the Constitution as a fig leaf for whatever judgment they render, we know the truth: Its value as a curb on government action—and therefore as a safeguard of freedom—was all-but-destroyed long ago.
Last Saturday Pope Benedict XVI addressed a group called Italian National Civil Protection, made up largely of volunteers. This is the organization that provided much of the crowd control at two of Rome’s largest public events, the World Youth Day in 2000, and the funeral of Pope John Paul II in 2005. (I was in Rome for both events and can personally attest to the surprising order these volunteers brought. If only the same order could be seen in everyday Roman life … )
Benedict took the opportunity to remind the volunteers of their particular vocation to protect persons and their dignity and also compared their service to that of the Good Samaritan. These volunteers choose to serve when others decline out of indifference or hardness of heart.
The Holy Father then reiterated one of the central themes of his first encyclical Deus Caritas Est, that while the State is responsible for the provision of justice, justice is not enough to make a society fully Christian. A Christian society must not rely on the State to provide what is most essential, i.e. charity, and must go beyond the strict provision of rights and duties. Here’s the key paragraph from Saturday’s talk, translated from the Italian:
As the Gospel reminds us, love of neighbor cannot be delegated: The State and politics, even with the necessary concern for welfare, cannot substitute it. As I wrote in the encyclical Deus Caritas Est: “Love will always prove necessary, even in the most just society. There is no ordering of the State so just that it can eliminate the need for a service of love. Whoever wants to eliminate love is preparing to eliminate man as such. There will always be suffering which cries out for consolation and help. There will always be loneliness. There will always be situations of material need where help in the form of concrete love of neighbor is indispensable.” (n. 28). This recalls and will always recall personal and voluntary commitment. Because of this, volunteers are not “stopgaps” in the social net, but persons who truly contribute to outlining the human and Christian face of society. Without volunteers, the common good and society cannot last for long, because their progress and dignity depend in large measure on those persons who do more than their strict duty.
Of course, most people assume that the State is and should be responsible, at a minimum, for public order and safety. But with his praise and gratitude for the volunteers, the Pope is not suggesting that they should supplant the state’s legitimate functions. However, these legitimate functions rarely, if ever, incorporate a ministry of love, which is essential to a humane social order. When the volunteers successfully provide order and safety for millions of visitors to Rome, they are doing so much more than their “strict duty.” Indeed, they are showing us what a true “service of love” looks like.
Kathleen Parker has a major case of secular reason sickness and it needs to be cured. I’ll keep this short and simple. Here is an offensive line from one of Kat’s latest columns:
How about social conservatives make their arguments without bringing God into it? By all means, let faith inform one’s values, but let reason inform one’s public arguments.
Problem #1: Social conservatives very rarely argue for their public policy positions on the basis of straight-up revelation. It is much more common to hear them talk about scientific evidence that life begins from conception (which could be found in an embryology textbook, for example) than to hear a scriptural exegesis of, say, Jeremiah 1. If anything, American social conservatives have worked quite assiduously to persuade their fellow citizens without direct appeal to revelation.
I think the Yale Law professor Stephen Carter was more correct several years ago when he complained conservative Christians relied on a platform that lacked spiritual distinctives and simply mimicked Republican positions. Mr. Carter is a scholar in the area of law and religion. His observation is well-informed by a review of recent history and current events.
Let us not forget that when some Christian leaders hid behind the separation of church and state to avoid addressing topics like Vietnam, the civil rights movement, and nuclear proliferation, their liberal colleagues were applauded for highly public spiritual approaches to those controversies. When liberals do it, we call it “speaking truth to power” or “speaking prophetically.” When conservative religionists enter the political process, everyone suddenly frets about impending theocracy.
Problem #2: Ms. Parker acts as though everything we discuss in politics can be parsed scientifically. This is the same sort of casual toss-off we get when some self-satisfied personage says, “You can’t legislate morality.” Really? Hate crimes? The illegality of segregation? A welfare state? Human rights?
The simple fact is that politics concerns itself with the realm of value as well as the realm of fact. There are both religious and philosophical approaches to questions of value. Is there any compelling reason to commit epistemological segregation, Ms. Parker? Must the religious contestants sit at the back of the bus to satisfy you?
On an episode of NPR’s Talk of the Nation last month, professor Jay Parini of Middlebury College discussed his role in the criminal justice sentences given to students who were involved in the vandalism of the former summer home of renowned poet Robert Frost.
Some of the younger students involved took part in a class on Robert Frost as part of an alternative sentencing plea agreement. As Prof. Parini says, “It’s a sort of unique punishment, talk about the punishment fitting the crime.”
Be sure to listen to the show to get the details of the whole story. This sounds to me like a perfect example of jurisprudence, that is, wisdom in the application of law. By connecting the offenders to the reality of Robert Frost’s life and work, the real impact of what they had done was communicated to them.
The potential for alternative sentencing agreements like this is just one of the possibilities I discuss in a newly published essay, “To Reform or to Abolish? Christian Perspectives on Punishment, Prison, and Restorative Justice,” Ave Maria Law Review 6, no. 2 (Spring 2008): 481-511. In that piece I lay out a basic scheme for understanding the different Christian approaches to restorative justice, particularly with regard to the relationship between punishment and restoration, along with some of the theological and practical implications for these various streams.
“It seems obvious that from a perspective of personalism,” I write, “relevant contextual differences should be considered in sentencing, and judges should have the ability to exercise prudential judgments on such matters.”
The case of the Frost house vandals underscores the value of this perspective, contrasted with that which emphasizes strictly controlled mandatory sentencing, especially for minors and youths. As Parini also says, “Poetry is about reparation and restoration.” The task for the prudential administration of justice is to balance and coordinate the necessity of punishment as an end in itself and as an instrument oriented toward reconciliation.
As an aside, I might also note that Prof. Parini would do his regular college students better service to teach them as he taught the offenders. Talking about his treatment of the Frost poem, “The Road Not Taken.” “When I teach the class to my students at Middlebury, it’s a you know sophisticated group, I do a fairly post-modern reading of the poem…. In a post-modern reading of that poem it’s more complicated.”
But in teaching the class of offenders Parini emphasized the recognition of metaphoric and symbolic values as a necessary part of coming to grips with the realities and responsibilities of life: “I realized these kids are at a very simple level here and Frost is confronting one of the issues that we have moral choices breaking in front of us at every moment.” This latter approach does more justice, so to speak, to the duties of the moral imagination than the sophistry of a post-modern reading, in which there is really no “wrong” road to take.
The theme of this issue of the Ave Maria Law Review is “The Constitutionality of Faith-Based Prison Units,” and there are some valuable resources for coming to grips with a practical dilemma facing the relationship between church and state in America. Another noteworthy and timely essay in this issue is Edward E. Ericson Jr.’s “The Enduring Achievement of Alexandr Solzhenitsyn.”
Certain things which the market authorizes simply in terms of law are unchristian and ought not to be done. The big issue today has to do with the fidelity of marriages. The tendency now to leave your wife because you have an infatuation with a younger woman of tenderer flesh is an enormous temptation. It’s carnal, and it’s also easy to justify with all the solipsistic reasoning that we hear today. That is about the gravest offense that a human being can commit, to throw away a wife.
From this it doesn’t follow that the state should make the law tougher, but rather that the culture needs to be reformed. Modifying the law is only one way, and often not the best, to do that: “…unless we create a virtuous society, it’s not a society that’s going to endure. So the right things should be encouraged and the wrong things discouraged. Today, roughly speaking, there is zero taboo against fornication.”
The whole thing is worth reading, as they say (HT).
Atlanta officials did not decide Tuesday whether they should become fashion police.
However, they did agree to continue to debate whether the city should regulate whether folks can walk around Atlanta with saggy pants and exposed undies. Council members expect to create a 10- to 12-member task force soon to further the debate and decide whether Atlanta should — or can — pass a law to control fashion.
Either way, the issue drew heated discussion from a crowd of about 55 who packed the first City Council committee debate on the subject Tuesday afternoon. Here’s what some folks had to say: Dave Walker, East Atlanta: “We got old and forgot there are fads. They come and they go and no legislation is going to get rid of natural trends. We have no right to legislate what folks wear.”
James Allen, Atlanta: “It bothers me as a black man. They dress down. They talk down. Some of the things they do are downright low down. It sickens me. We need to teach them in a way they will become prospects, not suspects.”
Yemaya Bourdain, senior at Clark Atlanta University: “This is absolutely asinine. I can’t believe this is the best you guys can come up with. As if we don’t have enough already targeting our black youth. Who can this help?” Clyde Wilson, Atlanta: “It is a problem. Not just the men wear their clothes down; the women do. If you dress like a prostitute, they are going to treat you like one.” Naomi Ward, Atlanta: “I am supportive of the ordinance. It is not just unsightly. It is what it represents. It is restrictive and constrictive. It restricts the physical movement. And it constricts the mind.”
Are you kidding me? A law? Is this the best use of the law? We are moving closer and closer to a police state. Here’s why this is silly:
(1) The law won’t change the mentality that says, “wearing pants below my butt is a good thing.” How is a law going to change that? Oh wait, this does work, right? Making the drinking age 21 sure has curbed “under age drinking.”
(2) How do you enforce a crazy law like this? How many inches below the waist will be illegal? Will police officers need to get outfitted with a special holster for tape measure alongside their guns and handcuffs?
Ok, saggy pants are unpleasant to look at but I’m not sure wearing pants low should be illegal. What aren’t we, instead, seeking to affect the mentality that embraces saggy pants as good? Maybe we want to pass a law because changing a mind-set would require getting personally involved in the lives of people who wear saggy pants. We would much rather pass a silly law than to roll up our sleeves and sacrifice our own time to offer those individuals a different vision for their own dignity. This requires time and energy and it comes with with no guarantees for change. It’s risky.
Laws of this type expose our own apathy to show real compassion and commitment to those people with whom we disapprove. Is it possible that those who seek such laws don’t see those that wear baggy pants as human beings who can be reasoned with and persuaded to behave otherwise? “These people are stupid, pass a law,” the law-seekers conclude. If you want a kid to stop wearing his pants below his butt then personally get involved in his life. This is how true virtue is cultivated–from one person to another. Passing fashion laws will not cultivate character, virtue, nor wisdom. It’s an impersonal, materialist solution to a problem that needs personal attention and care.
Has anyone ever thought about the fact that saggy pants may be cry for help?