Mystery and metaphor

“The Pharisee with head unbowed prayed in this fashion: ‘I give you thanks, O God, that I am not like the rest of men – grasping, crooked, adulterous – or even like this tax collector. I fast twice a week. I pay tithes on all I possess.” – Matthew 17:11-12 (NAB)

The struggle between man and God may be this: only one of them can be a mystery. The other must be like him.

A child is his own mystery, and he circumscribes God, as he does everything else, by making connections. God is like a king or a father, for instance, or like a clockmaker. Essentially, God is like the child.

But a child – and a man, too – as his own reference point, is like nothing else. Long into adulthood, I defined myself by what I was not – a sinner, for instance, or my father. My religion was apophatic, but I was its object. I prayed unbowed.

A mystery is the coming end of objectivity and metaphor: “We shall see face to face.”

When my midlife crisis scrapped my identity, I learned that God is beyond metaphor. He is not like anything he created, though his creation is like him.

I learned that I am one of his children.

How important is the Supreme Court?

In 1831, two young Frenchmen visited America, charged by their government with investigating the American prison system. They finished in nine months. They also spent those months months investigating “all the mechanisms of this vast American society,” as the leader of the pair, Alexis de Tocqueville, put it (Tocqueville vi). The result is Democracy in America, a book that implicitly critiques the French government and society of Tocqueville’s time through its largely favorable review of American government and society.

One American institution that struck the twenty-five-year-old de Tocqueville as quite different from anything in Europe was the United States Supreme Court. He was amazed: the Supreme Court can tell the rest of the American government what to do. By contrast, all European governments, no matter their form, show “the greatest repugnance to allow the cases to which it was itself a party to be decided by the ordinary course of justice” (123). He pointed out that, unlike European tribunals, when the Supreme Court hears cases between, say, New York and Ohio, it “summons sovereign powers to its bar.” And although Tocqueville didn’t mention it, he might have added that the 1803 case of Marbury v. Madison settled early on that the Supreme Court has the authority to declare acts of Congress invalid if it finds that they are without Constitutional basis. In Tocqueville’s time, this kind of authority in the hands of an independent judiciary was unknown in other modern societies.

Tocqueville was so taken with the Supreme Court’s role that he felt that its reputation and preservation were more important than that of the other two federal branches of government, the presidency and Congress. Yet, more than the other two branches, the court was also more subject to injury from popular disdain. The justices are the “all-powerful guardians of a people which respects law; but they would be impotent against popular neglect or popular contempt,” he claimed, pointing out that the Supreme Court must act consistently with the nation’s understanding of the rule of law (124). We, on the other hand, often see our Supreme Court as the least important of the three branches and, because of the justices’ lifetime appointments, the least subject to adverse popular opinion.

We have some good authority to support our view. Tocqueville’s equally famous countryman, the political philosopher Montesquieu who lived a century before Tocqueville, thought courts were inherently powerless. Montesquieu influenced the framers of the American Constitution by updating the Roman notion of separation of powers, giving us the executive, judicial, and bicameral legislative branches we recognize today. In so doing, however, Montesquieu claimed that the the judicial branch is “in some measure next to nothing” (Huntington 392). After all, nobody (we would say today) comes to a game to see the umps.

Which Frenchman is right? Is the United States Supreme Court the most or least important branch of American government?

In exploring this question, it may be helpful to make two distinctions. The first is between power and function, and the second is between power and authority. Clarifying those three terms may suggest how the framers understood sovereignty and the rule of law as well as the Supreme Court’s role in maintaining this understanding.

We generally think of the Constitution as balancing three primary governmental functions. The Constitution separates functions, however, only to the extent that such a balance of functions achieves the document’s greater goal — a separation and balance of powers. The Constitution is designed to keep sovereignty away from any single part of government, whether it be a branch of the federal government or whether it be the states vis-a-vis the federal government. For instance, as American political scientist Samuel P. Huntington pointed out, “the judicial power to declare what law is became the mixed judicial-legislative power to tell the legislature what the law cannot be” (393 – 394). The Supreme Court also has a quasi-executive role since it can pass on the constitutionality of many executive decisions, such as the suspension of habeas corpus or the issuance of executive orders. The Constitution gives the court more than a judicial function in order to balance some of the powers the Constitution acknowledges.

This sharing of functions to create a true balance of power isn’t a modern invention. In fact, Huntington argued that the American government’s separation of powers is a holdover from the late medieval period before the rule of law began to be replaced by the rule of men. Beginning in the seventeenth century, the nations of continental Europe placed their sovereignty in kings while the English Civil Wars and Glorious Revolution eventually caused sovereignty to be placed in Parliament. The American colonists, however, kept to Tudor-era notions of the supremacy of common and natural law. As British historian Albert Pollard pointed out, “Americans instinctively revolted against the doctrine of the sovereignty of the State” (Huntington 388). At the time of the American Revolution, Americans were still resisting the modern “tendencies toward the substitution of sovereignty for law,” as Huntington put it (386). Americans kept Elizabethan notions of law, just as the the residents of the Chesapeake Bay’s Tangier Island retain certain Elizabethan speech patterns.

It would be helpful to define both sovereignty and the rule of law. Sovereignty, the jurist Jean Bodin says, is the notion that there is “a supreme power over citizens and subjects, unrestrained by law” (Huntington 384). Sovereignty, then, is the assertion of power over others, a concept that political theorist Hannah Arendt said hinders freedom: “If men wish to be free, it is precisely sovereignty they must renounce” (Arendt, Between, 163). The rule of law, however, is the opposite of sovereignty. The rule of law is not to be confused with “law and order”; indeed, the significance of rule of law is in its scope and not its force or strength. Political Theorist Francis Fukuyama defines the rule of law as “rules that are binding even on the most politically powerful actors in a given society” (11). In other words, the scope of law must bind even kings and Parliaments. The American founders held to notions of natural law — law that is discovered by man but not generated by him — precisely to counter modern notions of sovereignty.

This idea of rule of law as exercising something like sovereignty points to the distinction alluded to earlier between power and authority. Power includes coercion, but Arendt said that authority cannot be equated with or rely on coercion — or, for that matter, even persuasion. In fact, she said that “practically as well as theoretically, we are no longer in a position to know what authority really is” (Arendt, Between, 92 – 93). She described where the political idea of authority came from — the founding of Rome — and she described also how the Roman Senate, even when it had no power, was consulted by Rome’s powerful rulers for its blessing on legislative or executive measures. The Roman Senate was the guardian of Rome’s founding, and its task was to measure every governmental action against that founding (120 – 122). That gives us some notion of what authority is even if the West no longer generally experiences it, as Arendt suggested.

Where, then, did authority in the West go when Rome fell? The Catholic Church took on the Roman Senate’s role; Arendt was fond of quoting a pope writing to an emperor at the end of the fifth century: “Two are the things by which this world is chiefly ruled: the sacred authority of the Popes and the royal power” (126). This pope-king tandem lasted in the West for over a thousand years, Arendt asserted, but it collapsed during the Reformation and the Scientific Revolution. One can infer this collapse in the preoccupation with governmental legitimacy in the writings of the period’s political thinkers. Political theorist Alexander S. Rosenthal pointed out that Richard Hooker’s question “‘what conditions make the power to rule legitimate?’ became particularly important in the sixteenth and seventeenth centuries” (107). Arendt believed that governments since then have frequently resorted to force — to power — as a tragic means of compensating for their lack of authority.

One modern institution attracted Arendt’s attention because of its authority, however — the American Supreme Court. Its lack of power and its lifetime appointments make it “the true seat of authority in the American Republic” (Arendt, Revolution, 192). She compared the Supreme Court directly with the Roman Senate, pointing out this small distinction: instead of giving political advice, the Supreme Court gives legal interpretations (193). She approved of Woodrow Wilson’s characterization of the court as “‘a kind of Constitutional Assembly in continuous session’” (192). The Supreme Court, then, gives the government and statutes the authority generated by the Declaration of Independence’s signers and the Constitution’s framers at our nation’s founding.

The Supreme Court’s powerlessness and its authority mean, of course, that both Montesquieu and Tocqueville are right. To maintain its authority — and thereby to maintain the entire government’s authority — the Supreme Court must not make mistakes regarding fundamental law that would undermine its standing with the American people. As Tocqueville warned, “If the supreme court is ever composed of imprudent men or bad citizens, the Union may be plunged into anarchy or civil war” (124). He was right: within twenty years of Democracy in America’s publication, the Supreme Court’s infamous Dred Scott decision helped to bring about the American Civil War.

When the Supreme Court adjudicates, it must consider its function as the source of our federal government’s authority. If it fails to rule in accordance with the Constitution and natural law — i.e., in accordance with the rule of law — it will cause a large segment of the American people to lose their trust not only in the judicial branch but in our entire system of government.

Works Cited

Arendt, Hannah. Between Past and Future: Eight Exercises in Political Thought. Penguins Books, 2006.

Arendt, Hannah. On Revolution. Penguin, 2009.

Fukuyama, Francis. Political Order and Political Decay: from the Industrial Revolution to the Globalization of Democracy. Farrar, Straus and Giroux, 2015.

Huntington, Samuel P. “Political Modernization: America vs. Europe.” World Politics, vol. 18, no. 3, 1966, pp. 378–414. JSTOR, JSTOR, www.jstor.org/stable/2009762.

Rosenthal, Alexander S. Crown Under Law. Lexington, 2008.

Tocqueville, Alexis de. Democracy in America. Edited by Isaac Kramnick, W.W. Norton, 2008.

Lost in ironic detachment

When Barack Obama last month came out of his brief retirement, he gave a speech expanding on his famous stump maxim, “Don’t boo. Vote.” His new list of don’ts leading up to “vote” includes “Don’t lose yourself in ironic detachment.” Yet such a loss is one way to understand the Christian gospel. Without it, I wouldn’t vote.

Irony is not cynicism, its lazy first cousin. In the public realm, irony is the essence of justice. The Psalms, the prophets, and the Sermon on the Mount all speak of justice in ironic terms. When Samuel is born, the formerly barren Hannah proclaims that “The bow of the mighty is shattered, but those-who-stumble are girded with strength” (1 Sam. 2:4 Fox). Jesus’ birth leads to similar strains in Mary’s song: “He has deposed the mighty from their thrones and raised the lowly to high places” (Luke 1:52 NAB). Isaac, which means “laughter,” is named when his old, barren mother laughs at the suggestion that she would conceive him. And God himself laughs: “He who is throned in heaven laughs,” we are told, at princes who conspire against him (Psalms 2:1-4 NAB). Reinholt Niebuhr, quoting this verse in The Irony of American History, hears in God’s ironic laughter the possibility of earthly justice.

All of these birth stories – those of Isaac, Moses, Samuel, Jesus, and others – involve ironic justice precisely because every man and woman is a living irony, or as Hannah Arendt puts it, “man is a beginning and a beginner.” The miracle of each person’s birth, Arendt says, challenges the “automatic processes [that] can only spell ruin to human life.”1 Pharaoh, Eli’s sons, and Herod all seek to swallow the future into the present by monopolizing the public world – as it were, by supressing the vote.

Private man wishes only that a state apparatus not impede the private sector, and he asks the state to impartially adjudicate among private concerns like his own. But this utilitarian understanding of justice could – and did – operate in such realms as the Third Reich, which eliminate the public.

Irony is the first step back to a true public square. Its justice doesn’t merely decide between private, atomized disputants. Instead, it recognizes the claims of entire communities (Rowan Williams’s “trade unions, ethnic and cultural groups, co-operative societies, professional guilds . . . and, of course, churches and faith groups”2; Tocqueville’s “political associations”3) to a public life. A state apparatus alive to irony becomes, in Williams’s words, “a reliable and creative ‘broker’ of the concerns of the communities that make it up.”4 This “ironic detachment” leads me to members of groups I don’t belong to that are neglected or misused by cruel and automatic processes.

Irony is the midwife of the gospel’s second birth. I am David, whose righteous indignation against a rich thief leads the prophet Nathan to charge, “You are that man.” I am the Roman Christian warned by Paul: “You that judge do the same thing.” The second birth discovers my sense of justice contorted and privatized. Christ’s invitation echoes the psalmist’s and Hannah’s ironic justice: “He who seeks only himself brings himself to ruin, whereas he who brings himself to nought for me discovers who he is” (Matthew 10:39 NAB). My discovery of myself is only possible by living for another – for Christ both in God and in others. Biblical conversion, therefore, insists on a public world. Or as Walter Brueggemann puts it, “our discernment of God is at the breaking points in human community.”5

The irony is, had I not left home, the Democrats would control Virginia’s lower legislative chamber today. My parents’ district last year was decided by a coin toss following a tie vote, and the toss gave the Republicans their one-seat majority. To round out my claim to abdicated power: I keep up with my home town’s politics, I always vote, and I was inclined to support the Democrat.

Yet the prevalence of such anecdotes does nothing to increase voter participation. Why? People stay home on election day not because their vote won’t decide an election. They stay home because of “automatic processes.” They stay home because their home is their only world.

  1. Arendt, Hannah, Between Past and Future, at 166 – 169.
  2. Williams, Rowan, Faith in the Public Square, at 49.
  3. Tocqueville, Alexis, Democracy in America, Norton ed. at 154-160.
  4. Williams, Rowan, supra, at 80.
  5. Brueggemann, Walter, The Prophetic Imagination, at 16.

The fallen sign

Looking out my window, I see a temporary sign face down on the traffic island between the east- and westbound traffic. In our suburban town, these islands themselves are signs. If a school bus stops in the opposite direction on a divided street (that is, a street with an island) to pick up children, you don’t stop. If the street isn’t divided, though, you must stop. The island creates a legal fiction: you don’t see the bus’s outstretched stop sign because of the island. The island, I suppose, suggests something about whether drivers along the road are expected to anticipate pedestrians.

There are islands like traffic islands along the Potomac where we live, above the falls.  (South of the Potomac, but above the falls.) You’d paddle or sail across the river, portage your boat across the narrow island, and paddle or sail again. And you’d be in Maryland. (“Mainland” Maryland, I suppose, since the the islands themselves, like the river, are in Maryland. Borders are fictions, too, and sometimes they are also invisible.)

Alexis de Tocqueville, my latest live-in author, never associates civilization with civility. Here’s an example of how he uses “civilization” from Democracy in America:

The celebrated communities of antiquity were all founded in the midst of hostile nations, which they were obliged to subjugate before they could flourish in their place. Even the moderns have found, in some parts of South America, vast regions inhabited by a people of inferior civilization, but which occupied and cultivated the soil. To found their new states it was necessary to extirpate or to subdue a numerous population, until civilization has been made to blush for their success.1

I ask for greater civic life, but I’m not asking for greater civilization or even greater civility. I ask that we act, and in acting we challenge our assumptions about public life and our own being. We act, and we discover new thoughts and words commensurate with the act. Our hands and our feet teach us, much as they did when we were young.

Philip Kenicott has a nice piece in today’s Post on the Glenstone Museum’s new facility in Potomac. The Glenstone hopes to make interacting with art more contemplative. In the process of describing how it navigates the museum-as-temple and the museum-as-civic-center tension, Kenicott discusses the slow art movement. The movement considers not only the sign (the art) and the signified (the eternal, the meaning, the feeling, the transcendent, what have you) but also the soul.

Our signs — our means of policing ourselves in our positivistic, malum prohibitum society — rarely involve an interpretant. They don’t rise to the level of malum in se, which would require conscience and a notion of right and wrong that transcends law and even society. Cars move too fast for the moral judgment democracy craves.

 

  1.  de Tocqueville, Alexis. Democracy in America (Kindle Locations 4641-4645). Packard Technologies. Kindle Edition.

Errata

After the rally, many traders considered Black Thursday a correction. We think they were wrong: the next week, Black Tuesday started the Great Depression. But was the Great Depression itself a correction?

Locke’s state of nature justifies modern society — discrete individuals who live with one another out of convenience, each maintaining her inalienable independence. Is tribalism a correction of our societal structure? When tribal thinking leads to reduced health care and fewer vaccinations, for instance, is the resulting lower life expectancy a correction?

What do we do when correction is coming? Jesus’ king sees another king coming to fight him with twice his force. He counts the cost and sues for peace.  “In the same way,” Jesus concludes, “those of you who do not give up everything you have cannot be my disciples.” Did the king give up everything by suing for peace, or did he give up giving up everything by not fighting?

Perhaps the solar system is, in the long run, a correction of sorts, a short-term contraction between periods of heedless expansion.

Plurality, one way or another

Humans associate; it’s part of what makes us human. If we don’t, we’ll begin to see conspiracies, suggests Alexis de Tocqueville, a shrewd observer of not only American democracy but also of humanity:

In countries where associations are free, secret societies are unknown. In America there are numerous factions, but no conspiracies.1

In our atomized society, the television, the Internet, and social media — screens — replace faces. Few of us exercise our right to associate for political and societal ends the way Tocqueville discovered us doing in the early nineteenth century, so we live with conspiracies and rumors of conspiracies. No longer practiced in associational life outside of religion (if that), we assume that when two or more are gathered together, either Jesus or Satan is in the midst.

  1.  de Tocqueville, Alexis. Democracy in America (Kindle Location 3116 – 17). Packard Technologies. Kindle Edition.

This year’s assigned book

I assign all Americans but a single book a year, and they must discuss it with their neighbors as part of an effort to reconstitute the local. I don’t think this is too much to ask. (Past assigned works have included Reinhold Niebuhr‘s The Irony of American History, James Baldwin‘s Notes of a Native Son, James Agee and Walker Evans‘s Let Us Now Praise Famous Men, and Hannah Arendt‘s Between Past and Future.) This year’s book is the first new release ever assigned: Timothy Snyder’s The Road to Unfreedom: Russia, Europe, America.

Richmond’s revenge

Because Lincoln was there, all of his biographers describe it. Here’s how Stephen Oates’s account starts:

At last Richmond came into view, with columns of smoke billowing up against the sky. When Lincoln stepped onto the docks, followed by a dozen sailors armed with navy carbines, black workers recognized the tall, gaunt man with the stovepipe hat. “Glory!” cried a black woman. “Glory glory!”1

The fall of Richmond is still tough for many to swallow down here. Last month, Corey Stewart won the Republican nomination to unseat Senator Kaine in part by defending the Confederate monuments built in defiance after the fall along Richmond’s Monument Avenue. And my aunt corrected me years ago when I told her of my plans to live in Northern Virginia: I was to say “Upper Virginia.” After Richmond, north was no longer on the Old Dominion’s compass.

We wish to indulge this regional pride, of course, without considering its source: an historicist (i.e., lacking a moral compass) account of the Constitution that gives legal sanction to white supremacy. This attack on the Founders’ natural-law principles didn’t stop with Richmond’s fall; on the contrary, as conservative political theorist Harry Jaffa points out, “if ever there was a nation annihilated politically on the battlefield that nonetheless imposed the yoke of its thought upon its conquerers, it was the Confederacy.”2

It seems that the movement toward moral relativism among American conservative leadership that Jaffa warned of3 is complete, and Washington only awaits its conqueror. Those who never gave up the Lost Cause may not have the satisfaction of watching Jefferson Davis stroll the singed streets of Georgetown and Capitol Hill. But they’ll have something better this fall: the world’s greatest exponent of white fascism, Vladimir Putin, will enter our abject capital in triumph, receiving the hosannahs of his vassal and his congressional supporters.

  1. Oates, Stephen B., With Malice Toward None (1977), p. 420
  2. Jaffa, Harry V., A New Birth of Freedom (2000), p. 86.
  3. See, for instance, his 1999 book Storm Over the Constitution, which accounts for the conservatives’ internecine struggle that seems to have ended with Mr. Trump’s election.

If memory serves, Mr. Trump shouldn’t

I remember. I supported Mr. Clinton’s impeachment and, once he was impeached, I wanted him removed from office. It wasn’t only the perjury, after all; it was also the obstruction of justice.

The case for Mr. Trump’s impeachment is exponentially stronger than the one that persuaded me twenty years ago. While Mr. Clinton’s actions diminished his office, Mr. Trump’s actions threaten our republic’s existence.  Tom Steyer puts the case for Mr. Trump’s impeachment into eight categories, and I incorporate his summary herein by reference thereto. However, this week alone merits the president’s immediate removal from office. In his continuing effort to make our nation’s intelligence apparatus his own, he forcefully denigrated our intelligence services before a hostile, foreign power.  He also expressed his willingness to hand over American citizens to a foreign adversary for questioning regarding vengeful, trumped-up charges. We learned this week also that Mr. Trump had clear evidence of Mr. Putin’s direct involvement in the 2016 presidential election scandal even before Mr. Trump was inaugurated the following January. Mr. Trump’s many statements exculpating Mr. Putin and the Russians since then — statements we now know to be disingenuous — deaden any political will to defend ourselves from a like attack on our elections this year or two years hence. His preference for the Russian dictator over his own intelligence services suggest that our executive branch is being undermined by a resourceful enemy. Mr. Trump is an existential threat to our country.

We shouldn’t wait to learn from the Mueller investigation why Mr. Trump puts our enemy’s interests ahead of our own. We must act now to remove him from office on the clear evidence that he does put our enemy’s interest ahead of our own. Mr. Trump’s relationship with the Russian government is demonstrably a clear and present danger.

Yet the political, social, and financial dynamics that led to Mr. Trump’s election remain with us, and they make it difficult to discuss impeachment with about half the country. How can we reach people like me, who supported Clinton’s impeachment, with the argument for Mr. Trump’s?

One step toward reaching them would be to separate the issue of impeachment from our longstanding, divisive policy issues.

The day after Helsinki, I participated in a rally outside the White House gates. All of the speakers mentioned Mr. Trump’s craven actions before Mr. Putin. But two of the three speakers spent most of their time talking about the kind of issues that have been knocked about left and right for the past thirty years. These issues are important, but they don’t represent immediate dangers to the republic.

Listening to the usual liberal rhetoric, most open-minded conservative listeners at such a rally would find themselves re-riveted to their one-dimensional, left-right framework that they share with most liberals, and these conservatives would become effectively powerless to hear the argument for impeachment. Put another way, if they hear most voices for impeachment link the issue with the liberal side of well-worn unraveling-era issues (campaign finance, gun control, tax cuts, etc.), they’ll consider the call for impeachment merely the desperate scream of a political party currently shut out of power.

In one respect, at least, Mr. Trump is like the Apostle Paul: he can count on a crowd’s divisions to get out of hot water:

But when Paul perceived that the one part were Sadducees, and the other Pharisees, he cried out in the council, Men and brethren, I am a Pharisee, the son of a Pharisee: of the hope and resurrection of the dead I am called in question. (Acts 23:6)

Paul’s accusers then began bickering over the doctrine of the resurrection. Paul ended up with the backing of half the crowd, which had forgotten why Paul was before the Roman counsel in the first place. The captain removed him before things really got out of hand. The genre here is almost comic.

Paul later expressed regret for his role in the incident — read Acts 24:21 — but I doubt Mr. Trump will ever regret using such a tactic. He retreats to unravelling-era issues to make an implicit claim to half of us. “You need me to win the issues for which you’ve fought so hard for a generation,” he seems to say. “Your part in this bargain is to ignore the clear evidence that I’m undermining our nation’s security.”

To remove the president, we — liberals, conservatives, and centrists — must focus on the arguments and evidence for removing him and not remain distracted by what divides us. To avoid this distraction, we need to discover life outside of the one-dimensional, left-right framework that cramps our public space. We need to remember not only Mr. Clinton’s crimes and punishment but also the restorative principles, perspectives, and experiences of our nation’s founding. We need to start to read and talk about those principles, and we need to act according to them, too. The Declaration of Independence might be a good place to start.

I must love this author

I find most of my books while reading other books’ footnotes. Winton Solberg’s 1958 book The Federal Convention and the Formation of the Union, which came in the mail yesterday, is the latest example. I discovered it while rereading Hannah Arendt’s 1963 book On Revolution. Arendt cites Solberg’s book four times in her footnotes.

She sites him enough to tell me that she’s a magpie of a researcher. A main point here, an inference Solberg never made there, and an overall appreciation for the writer in all four notes. Her sources seem fewer and better considered than most academics’ sources. Her appreciation reminds me that all books are commonplace books; some are just better footnoted.

As I thumbed through this first-edition Solberg, which I got for pennies over the Internet (plus shipping), I thought about Arendt’s reading of Solberg. It occurred to me, pacing in my little library, that I was holding a copy of the very edition Arendt had held. And in a sudden bout of reverence, I almost dropped the book.