Most commentary about Bork is the usual red-blue stuff. Conservatives generally like him for the same reasons liberals dislike him: he has conservative views on social issues, and he believes in expanding states’ rights. But can we get past his political beliefs, as important as they are, and look at his constitutional ones, too?

Bork’s constitutional beliefs are no secret. He sets them out in The Tempting of America, a bestselling book he published shortly after his failed Supreme Court nomination during the Reagan Administration.

Read the book: Bork doesn’t believe in inalienable rights. He doesn’t believe in self-evident truths. That should concern all Americans — conservatives, liberals, and moderates alike.

Instead of truths, Bork believes in certain values. (Haven’t I heard so many of my socially conservative friends mock the notion of “values” as a subjective substitute for the notion of objective truth?) If the Constitution is silent or unclear about a point, Bork believes, then the “majority morality” — the majority’s values — should control:

There is no way to decide these questions [placing moral positions at odds with one another] other than by reference to some system of moral or ethical principles about which people can and do disagree. Because we disagree, we put such issues to a vote and, where the Constitution does not speak, the majority morality prevails. (From The Tempting of America)

In our pluralistic society, he says, the controlling values are the majority’s. But is this really a majority’s prerogative? Isn’t this the kind of nihilistic thinking conservatives often attribute to liberals?

Here’s conservative Edward J. Erler‘s response to Bork:

Indeed, Madison, like Jefferson, argued . . . that a majority may do only those things “that could be rightfully done by the unanimous concurrence of the members.” Thus it is not simply the will of the majority that “rightfully” rules in a democracy, but the rational will of the majority. In the same vein, Jefferson wrote that “[i]ndependence can be trusted nowhere but with the people in mass. They are inherently independent of all but moral law.” Thus, it is clear that Madison and Jefferson viewed the people as a moral entity, not simply as a collection of discrete value-positing individuals. The positivism of both Bork and Rehnquist is predicated on a kind of moral relativism that ultimately leads to nihilism.

– Edward J. Erler, in his introduction to Harry V. Jaffa’s Storm Over the Constitution, p. xxix

What makes a Strict Constructionist a Strict Constructionist? At bottom, the denial of self-evident truth. Strict Constructionists adhere to the letter of the Constitution even in situations when traditional Constitutional construction would lead jurists outside of the text. (John Marshall, for instance, sometimes would argue a Constitutional provision only to reinforce a finding he would make chiefly through natural law.) What drives Strict Constructionists to overly fixate on the Constitution’s text? Partly the same literalism with which some Protestants approach the Bible in response to the Enlightenment. Partly their core belief that no one can divine the Constitution’s spirit or distinguish between its ideals and its political compromises. And partly their reaction to the progressives’ Living Constitution. But Strict Constructionists never meet the Living Constitution’s argument that we can’t know what the Framers meant. Instead, they reinforce the Living Constitution’s argument through their over-insistence on the Constitution’s letter.

We can usually know what the Framers meant. It’s no secret. Sure, a lot of important, fundamental matters divided them — the nature of federalism and the extent of the franchise, for instance. But a relatively new philosophy and an older heritage united them: Lockean liberalism and the broader notions of natural law and English common law. Original intent is an open mind informed by a vigorous legal and constitutional tradition. Beside it, Strict Constructionism and the Living Constitution appear merely as simplistic rules of statutory and constitutional construction.

Bork believes that we cannot, as a society and through reason¹ and difficulty, rediscover the first principles in the Declaration of Independence that animate the Constitution. But if our society is incapable of discovering first principles, then self-government must in the long run fail. No one with such a narrow and pessimistic view of human nature can believe in American republicanism.

Are conservatives so anxious to reverse the last century of progressive gains that they would surrender their beliefs in self-evident truths, inalienable rights, and republican government to do it?

Shakespeare foresaw the melting of the polar ice caps:

. . . the bounded waters
Should lift their bosoms higher than the shores
And make a sop of all this solid globe

(From Act 1, Scene 3 of Troilus and Cressida.)

Interesting, though, that like the gospel writers, Shakespeare prophesies with a sop.

John brings his layers of proximity to the Last Supper, which for John also means layers of intimacy and understanding. Just as John assigns the master of the feast, the servants, the reader, and Mary to different circles when Jesus turns the water into wine, he assigns the disciples to different positions at the Seder table, and therefore to different levels of relationship and intimacy.

John places his own personae (always “the disciple whom Jesus loved”) next to Jesus. John even uses the Seder tradition of reclining at table — the perogative of a free man, thanks to the exodus from Egypt — to suggest John’s inner-circle status. The Revised English Bible has John “reclining close beside Jesus,” but the King James declares that John was “leaning on Jesus’ bosom.” Peter, who is not next to Jesus or John, has to signal John to have him ask Jesus a question. Judas is within arm’s length of Jesus, presumably: Jesus gives him a sop after he dips it in the wine.

John’s Seder is more like a real Seder or like any meal with a dozen or more people present. Not everyone hears everything. The volume goes up and down. Conversations happen simultaneously at times. John’s Last Supper is therefore more like modern theater than the Synoptic Gospels’ Last Supper, but it’s still John’s theater. The stage directions, the intimacy, even the dramatic conversations itself point to layers of relationship and understanding.

John’s drama centers on the sop. The Synoptic Gospels use the sop as a generalization, a means of turning a specific question into an indication that Scripture is being fulfilled. Here’s Mark’s version:

They began to be grieved and to say to Him one by one, “Surely not I?”  And He said to them, “It is one of the twelve, one who dips with Me in the bowl. (Mark 14:19-20)

The New American Standard notes suggest that “one” may also be read “the one.” This ambiguity is as close as the three gospels come to using the sop as the means of identifying Jesus’ betrayer. Jesus doesn’t answer the disciples’ question directly in the Synoptic Gospels; that is, he doesn’t make the sop a means of identifying Judas. He simply paraphrases Psalms, making the verse prophetic of their last meal together. Here’s the verse Jesus alludes to:

Even my close friend in whom I trusted, who ate my bread, has lifted up his heel against me. (Psalm 41:9, NNAS)

But John transforms the sop into the means of identifying the betrayer. How? Here’s the King James Version of the text:

When Jesus had thus said, he was troubled in spirit, and testified, and said, Verily, verily, I say unto you, that one of you shall betray me. Then the disciples looked one on another, doubting of whom he spake.  Now there was leaning on Jesus’ bosom one of his disciples, whom Jesus loved.  Simon Peter therefore beckoned to him, that he should ask who it should be of whom he spake.  He then lying on Jesus’ breast saith unto him, Lord, who is it?  Jesus answered, He it is, to whom I shall give a sop, when I have dipped it. And when he had dipped the sop, he gave it to Judas Iscariot, the son of Simon.  And after the sop Satan entered into him. Then said Jesus unto him, That thou doest, do quickly. Now no man at the table knew for what intent he spake this unto him.  For some of them thought, because Judas had the bag, that Jesus had said unto him, Buy those things that we have need of against the feast; or, that he should give something to the poor.  He then having received the sop went immediately out: and it was night. (John 13:21-30, KJV)

First, Jesus here doesn’t use the sop as an allusion to Scripture. It simply is a means of designating to one of his closest disciples who is betrayer is: “He it is, to whom I shall give a sop, when I have dipped it.”

Second, Jesus’ remark about the sop isn’t spoken to everyone at table but only to John. Peter’s need to signal John suggests that not everyone can hear everything. Peter’s signaling also suggests that, if Peter has his way, only he and John will know who the betrayer is. We know that no one but John hears the sop remark since “no man at the table knew” why Jesus says, “That thou doest, do quickly.” The sop remark would have made the meaning of Jesus’ remark to Judas evident. It’s not clear if Peter learns the significance of Jesus’ remark to Judas, but I like to think John makes it clear to him after supper.

Peter and John have a special role with respect to the Seder in Mark’s and Luke’s gospels, too. Mark says that Jesus sent “two of his disciples” to secure a room for the Seder (Mark 14:13). Luke makes clear that the two disciples sent are Peter and John (Luke 22:8). Mark and Luke therefore designate Peter and John as intimates by what they do. Consistent with the rest of his gospel, however, John designates Peter and John as intimates by what they know.

[I'm reading John's gospel. My reactions here vacillate between notes -- a list of impressions -- and something less sketchy. A note on nomenclature: the note number in my post's title indicates the chapter of John's material I'm reacting to. A title's letter, though, differentiates the post from earlier posts about that chapter. "John field note 2c," then, is my third post concerning John's second chapter. N.B.: 12a may precede 3d: I skip around.]

There was a time when mapmakers named the places they travelled through with the names of lovers rather than their own. Someone seen bathing in a desert caravan, holding up muslin with one arm in front of her. Some old Arab poet’s woman, whose white-dove shoulders made him describe an oasis with her name. The skin bucket spreads water over her, she wraps herself in the cloth, and the old scribe turns from her to describe Zerzura.

No commentary to make me feel better about quoting it. I’m not up to it.

I just finished Crime and Punishment (second read). I’m really enjoying All The King’s Men (first read) and, yeah, John’s gospel. And, very slowly — sometimes backwards – The English Patient.

Rule 1: Jesus’ testimony about himself would be invalid if unaccompanied by other evidence (John 5:31).

His language suggests, however, that his testimony about himself is invalid, period: “If I testify on my own behalf, that testimony is not valid” (Id., REB). Later, the Pharisees use this strict reading of Jesus’ rule against him:

The Pharisees said to him, ‘You are witness in your own cause; your testimony is not valid.’ (John 8:13, REB)

Jesus seems to reverse himself but argues in the alternative that Deuteronomy 19:15 applies:

In your own law it is written that the testimony of two witnesses is valid. (John 8:17, REB)

The second witness, of course, is God the Father.

Rule 2: Human testimony is not essential but is provided as a concession.

Jesus reminds his listeners of John the Baptist’s testimony, and he points out that they sent messengers to John and “rejoiced in his light” for a little while (John 5:33 – 35). Jesus suggests, then, that the Jews implicitly recognized John’s authority as a witness.

Jesus seems to have an ambivalent attitude towards John’s testimony.  He validates it for a reason similar to the one he says Moses permitted divorce: “because of the hardness of your hearts” (Matthew 19:7-9, KJV).

Rule 3: God the Father testifies about Jesus through the work he has Jesus do (John 5:36).

This “work,” we learn elsewhere in John, includes the signs (miracles) Jesus performs as well as his crucifixion.

Rule 4: God the Father’s other means of witness are unavailable to his listeners because of the nature of God (invisible form, inaudible voice) and the state of his listeners’ hearts (unwilling to accept the scripture’s testimony about Jesus) (John 5:36-40).

Rule 5: A juror will remain unpersuaded of any evidence if he wants honor from others instead of from God (John 5:41-544).

Rule 6: Belief in what Moses said about Jesus is a precondition to belief in what Jesus says about himself (John 5:45-47).

There are two more aspects to John’s gospel’s courtroom underpinnings I’ll explore in later notes. One is the separate, later trial Jesus frequently alludes to. Jesus accepts that he’s being judged by his listeners; in fact, most of the legal language in John involves that trial. But he suggests that the tables will be turned one day, and that the subsequent trial will turn on how his listeners judge him during the first trial.

The second aspect I’d like to explore is how John’s gospel ranks the different forms of evidence it addresses. And why it does: sometimes (as one would expect) as a guide to the strength of various forms of evidence, but more often to suggest the relative receptivity of different people to different forms of evidence and, through it, the relative merit they deserve.

[I'm reading John's gospel. My reactions here vacillate between notes -- a list of impressions -- and something less sketchy. A note on nomenclature: the note number in my post's title indicates the chapter of John's material I'm reacting to. A title's letter, though, differentiates the post from earlier posts about that chapter. "John field note 2c," then, is my third post concerning John's second chapter. N.B.: 12a may precede 3d: I skip around.]

For the space of six verses at the end of John 3, for instance, the English translations can’t agree on who’s talking.

The New American Standard thinks that in verses 31 through 36 the speaker is John the Baptist, but the New Revised Standard and the Revised English Bible think the text has switched from John the Baptist to John the narrator.  But even the New Revised Standard acknowledges in a note that “some interpreters hold that the quotation continues through verse 36,” making the speaker John the Baptist.

Here’s the exact intersection of John the Baptist’s words (first sentence) with what might be John the narrator’s words (second sentence):

He must increase, but I must decrease. He who comes from above is above all, he who is of the earth is from the earth and speaks of the earth. (John 3:30-31, NNAS)

Things that don’t matter in John the way they need to matter in other books, even other gospels: where, when, and now who. The words at the end of John chapter 3 could have come from Jesus, John the Baptist, or John the narrator. The porous borders certainly highlight the message but, oddly, not at the expense of characterization, at least in a deeper (or John would say, higher) sense because the words point back to identity. Who is behind words is a central concern in John. Even in the contested six verses, the central issue is the words’ sources:

He who comes from above is above all others; he who is from the earth belongs to the earth and uses earthly speech. He who comes from heaven bears witness to what he has seen and heard, even though no one accepts his witness. To accept his witness is to affirm that God speaks the truth;  for he whom God sent utters the words of God, so measureless is God’s gift of the Spirit. (John 3:31-34, REB)

While the reader is trying to figure out who’s speaking, John is telling us how to tell who’s really speaking. My inquiry (i.e., who is speaking) belongs to the earth, but John uses the terms of my inquiry to point to a higher level. He has done this to me earlier in the book, just as he has done it to the Jews and to Nicodemus.

In John, the reader as unspoken character never evanesces for long.

[I'm reading John's gospel. My reactions here vacillate between notes -- a list of impressions -- and something less sketchy. A note on nomenclature: the note number in my post's title indicates the chapter of John's material I'm reacting to. A title's letter, though, differentiates the post from earlier posts about that chapter. "John field note 2c," then, is my third post about something in John's second chapter. N.B.: 12a may precede 3d: I skip around.]

Like my previous letters, this one was not published.

Dear Sir:

Mr. Brag Bowling [Civil War 150, “No Abolitionist He,” Mar. 4] offers the South’s rejection of the Corwin Amendment as evidence that it wasn’t fighting to preserve slavery but “for a higher purpose, their political independence.” (The 1861 Corwin Amendment would have prevented any future Constitutional amendment from allowing Congress to end slavery in any state.)

While many Southerners didn’t trust Northern promises to uphold slavery in states where it existed, the South seceded over the Republicans’ promise to stop slavery’s spread into the nation’s considerable western territories.  The territories had been the national slavery debate’s political focus from the time of the Northwest Ordinance (1787) to the Missouri Compromise (1820), the Wilmot Proviso (1847), the Compromise of 1850, the Kansas-Nebraska Act (1854), and Bleeding Kansas (1854 – 1858). One need only peruse Donald Reynolds‘s excellent book Editors Make War: Southern Newspapers in the Secession Crisis to get an idea of how quickly the South turned to secession as a result of the Republicans’ 1860 electoral success and their commitment to stop slavery’s spread.

I’m a Virginian who, like Mr. Bowling, had forefathers who fought for the Confederacy, but I cannot honor – much less reinvent – the Confederacy’s motive.