A. Lincoln, by Ronald C. White, Jr.

Doris Kearns Goodwin's Team of Rivals remains my favorite Lincoln book.  But the comparison is hardly fair, since Goodwin gave us four biographies for the price of one.   This book, A. Lincoln is my favorite single volume biography of President Lincoln to focus solely on him.  What sets it apart from other works is the author's interest in Lincoln's development over time, and the analysis of Lincoln's skilled use of the English language, in his writings and oratory, to rally political support for policies that saved the Union and freed the slaves.

Lincoln's Journey of Faith

We do weird things with the dead.  We say that a particular founder "was a Deist" or that a particular 20th Century thinker "was a Communist" based on a particular piece of writing at a particular point in their life, as if their entire lives were static, from beginning to end, with no ebb, flow, or development of their opinions, including during those portions of their lives which make them most historically interesting. In Lincoln's regard, some modern historians will claim that he was a non-believer, and not a man of faith. Those who make this claim typically intend it as a compliment (reflecting their own values). However, if true, it would make Lincoln, whose speeches and writings in his final years were infused with Biblical language and theological suppositions, a rank cynic: using the language of faith in his masterfully powerful Second Inaugural to satisfy the common rubes, while holding himself aloof from such nonsense. This would hardly be a complimentary way to view Lincoln's character, whatever one's own personal beliefs. Nor would it be justified.  Lincoln was a shrewd politician, who knew how to balance competing interests.  But nothing in his life suggests he was full of such guile.

Here, we get a narrative that is supported by the evidence and rings much more true.   Like all Americans of his era, Lincoln knew the Bible extremely well.  (Once, upon learning by telegraph of a convention at which 400 Republicans had gathered together to select a new candidate to replace Lincoln on the ballot after his first term, Lincoln asked the telegraph operator to hand him a Bible, and quickly located an obscure passage about a meeting of 400 "discontented" Israelites who gathered together under David's leadership to unseat King Saul. 1 Samuel 22:2)   Nevertheless, a young Lincoln rejected the emotional displays of his parents' Baptist faith, and never joined a church.  What is more, early in his life, fresh from imbibing large quantities of Constantin Volney and Thomas Paine, he gave a speech offering his own similar critiques of revealed religion, which a friend, out of either offense, or to protect the young man, threw in the fire before he could finish reading it.  

Subsequently, however, as we learn from White, Lincoln became interested in the more rational and less emotional approach to religion offered by Springfield Presbyterian minister James Smith, in his book, The Christian Defense. Smith ministered to the Lincolns after the death of their son Eddie, and the Lincolns began attending his congregation, though Lincoln, riding the circuit, did not become a member and attended less frequently than his wife.  When his father's death was imminent, Lincoln wrote to his stepbrother, asking him to convey to his father that he should remember to call upon his merciful Maker, Who would not forget the dying man who puts his trust in Him.  In the final years of his Presidency, Lincoln would increasingly invoke the comforts of God to parents of fallen soldiers in letters of consolation, and the designs of God in official pronouncements, such as the Emancipation Proclamation.  At Gettysburg, Lincoln added the words "under God" to his prepared text, speaking the words extemporaneously during the speech's delivery (as all of the contemporaneous newspaper accounts of the address, based on stenographer's notes of the speech as delivered, confirm), and Lincoln included that phrase in all three versions he would write out at later dates. 

In the latter months of his Presidency, Lincoln, as was his custom when trying to work through a logical or philosophical issue, wrote himself a short memorandum, not meant for public view.  These personal notes were kept by Lincoln in his hat, or desk drawer, and, White argues, are the closest thing we have to his intellectual autobiography. This particular personal memo, found some time after Lincoln's death, began with the words, "The will of God prevails."  The memo discussed the phenomenon of both sides in the Civil War claiming that God was on their side, the logical impossibility that they were both right, as God could not be both for and against the same thing at the same time, and the likelihood that neither side was wholly right, but that God had his own purposes, and was using and adapting the will and actions of men to achieve the same. As it was not intended for the public, this writing is the best evidence we have of Lincoln's personal religious beliefs in the final years of his life, as he led the nation through the war.  The writing is theologically sophisticated, addressing one of the core paradoxes of Christianity, the conflict between free will and God's omniscience, as it contemplates a God who manages to work in and influence history, yet does so without impinging on human beings' personal will and choice, which are adapted to God's purposes.  White traces some of the influences which might have led to Lincoln's thoughts in the memorandum, which would later resonate in certain passages of the Second Inaugural.  The man who gave that speech apparently believed in the theological and biblical language which it used, in the God which it invoked, and in the Christian principles of mercy, reconciliation, and service to the widowed and orphaned victims of the war for which it called.

Lincoln's Political Journey

Similarly, with respect to slavery, one will sometimes come across a particular type of libertarian revisionist crank, almost always from the South, who insists that slavery had nothing to do with the Civil War, which was fought over tariffs or something, and who will support their revisionist history by citing various statements of Lincoln that the war was being fought to save the Union, and any decision to free slaves would be based on whether or not it furthered that cause.  The crank inevitably forgets that the South started the Civil War and did so very much because of its desire to not only retain slavery, but to extend it to new territories, which desire became the chief political conflict of the decade before the war.  (The Confederacy was formed, and Jefferson Davis chosen to lead it, before Lincoln was even inaugurated, and the South fired the first shots of the war, upon federal vessels bringing aid and non-military supplies to Fort Sumter, all of which events occurred on the basis of Southern outrage over the election of an anti-Kansas Nebraska Republican to office.) If we want to know why the Civil War was fought, it is the South's reasons for secession which must be examined, not Lincoln's response.   Moreover, the crank's simplistic analysis also forgets that historical figures are not static, and that political figures are constrained by that which is politically possible.

White does an excellent job of tracking Lincoln's willingness to apply his own personal beliefs against slavery into more proactive political action, over time. From early in his political career, Lincoln was opposed to slavery, which he felt was a moral evil ("If slavery isn't wrong, nothing is wrong.") But he was not elected, or even nominated as the candidate of his own party, as a radical abolitionist.  The Republicans chose him, instead of Seward, because the latter was too radical. Lincoln did not believe the Government had the ability under the Constitution to end slavery. His debates with Douglas, and his Presidential campaign, were based on the principle that slavery must not be extended into the territories, but restricted to where it already existed, where he promised it would not be interfered with (a promise he likely would have kept, had the South taken him at his word and not seceded).  Candidate Lincoln firmly believed the Federal Government had the right to restrict any extension of slavery, but he did not call for its abolition where it already existed, while running for President.  

When that position proved insufficiently moderate to a South which seceded in protest of his election, Lincoln was sufficiently astute to know that, in order to retain support for the war among Northern Democrats, and border states, he needed to emphasize that the war was being fought to preserve the Union from which the South had seceded, not to end the institution of slavery which had caused that secession.  This was much to the chagrin of those who filled the more radical abolitionist wing of the Republican party. But White tracks how, over time, Lincoln came to understand the hollowness of any victory which did not end slavery, and his willingness to therefore become more overt about that purpose of the war, over time.  

His developing thinking eventually led Lincoln to issue the Emancipation Proclamation (freeing the slaves as a military measure, only in locations where the Proclamation could have no practical effect unless the war were to be won). This was followed, upon further developments in Lincoln's thinking, by his orders for the recruitment of black Union soldiers. In turn, this decision, upon its successful implementation, was followed by Lincoln's September 3, 1863 speech, written for James Conkling to read and deliver at a Springfield Illinois pro-Union rally (the largest held during the war), praising the valor of those black soldiers as against their confederate enemies who, "with malignant heart, and deceitful speech" strove to hinder an important historical "consummation" namely the end of slavery.  This passage made clear that ending slavery was indeed now one explicitly hoped for effect of the war, although Lincoln still emphasized that the war remained primarily a war to save the Union, and no soldier was yet being asked to fight solely to end slavery.  The speech noted that Lincoln could only be accused of making such a request upon Northern soldiers if he were to ask them to keep fighting solely for that cause after the Union had been preserved.  Finally, the culmination of Lincoln's evolving thought on these issues led to his advocacy for the passage of the Thirteenth Amendment.  Had he lived to complete his second term, and thereafter take on the status of a successful two-term President and "senior statesman" would his thinking have developed even further, towards complete racial equality?  It is not unlikely. 

Lincoln the Writer and Orator

The author also relishes Lincoln's skills as a writer, a thinker, and an orator.  The passages in which White analyzes Lincoln's more important writings and speeches, and examines the rhetorical tools he utilized, are among the book's best.  And the description of how Lincoln, again and again, rallied political support for his policies when they came under fire, via a well-timed speech, or widely published letter to a newspaper editor or a political caucus, tell an important part of his story which no film (the primary medium through which most Americans have formed an image of Lincoln today) could ever capture. Lincoln's effective employment and deployment of the English language as a political tool reflected the founders, and is one of the reasons I like to think of him as the final founder.  Like Lincoln, almost all of the founders, save Washington, came to prominence and fame, and directed the course of history, on the basis of their way with the written word.

In our own era, screens have replaced newspapers, soundbites have replaced well reasoned writing, and political ideas too complex for an internet meme or a bumper sticker don't get very far.  This, as much as anything, explains why we are unlikely to ever see another Lincoln (or Adams or Jefferson or Hamilton or Madison) in our lifetimes. Whether we can find leaders fit for our times and its challenges, on the basis of whether those politicians come across as well on the screen, as Lincoln and his predecessors did in well-reasoned and passionate writing, remains to be seen.  But the evidence so far is not encouraging.

A. Lincoln by Ronald C. White, Jr.  (Random House 2010) Trade Paperback.  4 Stars out of 4.

Back to the Future. Welcome to the Post-Christian West

Pre-Christianity

In the year 65 A.D., the Roman Emperor Nero got in a row with his second wife, Poppea, and viciously kicked her in the stomach.  Poppaea was pregnant and died from her injuries. The Roman historian Cassius Dio records that, grief-stricken by the loss of his murdered beloved, Nero sought a replacement.  He found a youth named Sporus who he felt resembled Poppaea, castrated him, "married" him in a formal and public ceremony, including all of the customary recitations hoping for progeny, and, “used him in every way like a woman.”  This might have been Western civilization’s first same sex marriage, except that Nero, at the time of the wedding, was already married to another man, a former slave named Pythagoras.  As historical precedents go, this doesn't have quite the romantic resonance of Adam and Eve. But I'm sure the decorations were lovely, and that the bakers all knew better than to object. The pre-Christian Romans, like the post-Christian moderns, found the concepts of male, female, and marriage, to be loose, subjective, and fluid.  Or at least, when their rulers told them to think that way, they got on board if they knew what was good for them.

Nero’s views on marriage never really stuck.  Perhaps because they violated the prior understanding of what marriage was, and what marriage was for, as previously held by earlier generations of Greeks and Romans and every other civilization on earth, and perhaps because a new religion, little noticed by Nero until he needed someone to blame for the fire which destroyed much of Rome, was growing in influence, and would, some generations later, become the majority religion of the Western world which emerged from Roman ashes. That new religion, Christianity, would have very strict views about marriage, which would eventually come to be adopted by the West, making marriage between a man and a woman the centerpiece of the Western world's long-held child-centered and family-centered sexual ethic.

But Christianity's integration with and influence upon Western culture has now officially ended, and if we want to know what life is going to be like in the future, in our new non-Christian, but nevertheless Western, world, going back in time to study ancient Rome is one good place to start.  For the pre-Christian Romans resembled today’s post-Christian moderns in other ways as well. They were comfortable with a form of allegedly Republican government in which the Senate, as a polite fiction, still pretended to exercise its former legislative functions, but had in fact, since the time of Julius Caesar, ceded all real authority to the Emperor, whose pronouncements they rubber-stamped into law.  In similar fashion, modern state legislatures, and our federal congress, still like to pretend that Americans live in a democratic republic, but have long since ceded all real power to a judicial oligarchy, over the strenuous objections of earlier American Catos such as Jefferson and Lincoln, and to a President who makes law by executive order.  Other similarities abound.  Like Roman Emperors, who controlled the doctrines of the official State religion, our own Presidential office holders and candidates have recently become quite comfortable in making pronouncements on what churches should teach, with both Hillary Clinton and Barack Obama having recently lectured us on the need for a change in religious beliefs on subjects such as abortion and same-sex marriage.  Also, like Nero, our own judicial oligarchy gets a kick out of putting us in our place from time to time, and reminding us that our pretense to government by the consent of the governed has long since gone out of fashion, and that the judiciary's votes are the only votes which actually matter.    

Post-Christianity

Our judicial overseers most recently reminded us of how things really work in their decision in the case of Obergefell v. Hodges, issued June 26th, 2015.  Obergefell overturned a 1972 decision, Baker v. Nelson, in which even the Court which was otherwise liberal and arrogant enough to give us Roe v. Wade, took all of one sentence to explain that the U.S. Constitution does not mandate same sex marriage, and that claims to the contrary do not even raise a serious federal question. The proverbial toad has been in the increasingly hot water for a long time since then though, and its brain is long since boiled.  

Of course, what happened last week was more than just yet another act of raw political power, exercised by Judges supposedly occupying a non-political branch of government, who insist that their own personal policy preferences are Constitutional mandates, even with respect to subjects on which the Constitution is silent.  It was also the culminating act in the sexual revolution, which began in the 1960s, and has brought our nation such happy statistics as an illegitimacy rate which increased from less than 10% to almost 50% within my lifetime, a youth suicide rate that has increased threefold since 1950, and a welfare state whose non-discretionary expenditures now exceed 100% of the annual GDP.  

But what happened last week was more even than that.  What happened last week was, also, a final and culminating act in a drama which has unfolded over a much longer period of time: Call it the death of Judeo-Christian America if you will, or call it the official displacement of religiosity with secularism, or call it the creation of an official American Establishment of Religion: the Church of Secular Humanism, whose sermons and homilies are taught in movie theaters (hence the steeples in the architecture of so many Cineplexes) and written on Supreme Court letterhead.  Call it what you will.  What is clear is that Western civilization is now post-Christian, and, in many ways, closer in spirit to the pre-Christian Western civilization of Rome, than to the Christian era which just ended.  That Christian era began in roughly the third Century A.D.; flourished most successfully in an America governed by Madison's vision (as set forth in his Memorial and Remonstrances against Religious Assessments) of a secular government, distinct from and holding no authority over faith, but nevertheless recognizing that the demands and rights of faith were "precedent, both in order of time and in degree of obligation, to the claims of" that distinct government; and finally ended, and was given its funeral, on June 26th, 2015.

To be sure, just as there were additional battles and skirmishes after Yorktown, there is still some mopping-up to do.  The Obergefell decision will not be the final cultural skirmish in the sexual revolution or the battle of precedence between the secular and the divine, but it is nevertheless the decisive moment. What follows next will be ugly but is largely preordained. Churches must be emptied, either of their adherents or of their doctrines.  This will be easy in a world where the secular left holds all the fortresses: publishing, the news and entertainment media, universities, government, and the governmental and quasi-governmental bureaucracies which license citizens in their professions, accredit colleges, and oversee public education. It will be extremely easy to stomp down on dissenters in a world where, as a very non-Madisonian New Mexico Judicial Oligarch recently explained, the loss of religious freedom is now the “cost of citizenship.” If people of faith fail to resist, the mopping up effort will not take long.  

But there is still some cause for hope, albeit distant, at least for those of us who take a long view of history. Everything the secular left is about to impose upon American Christians --the editorial attacks against reactionary religious forces in the newspapers, the inability of a believer to get into the right college, or be accredited or licensed in her profession if she graduates from the wrong college, the co-opting of private civic organizations, such as the BSA– has been done by secular leftists before, in Eastern Europe between 1947 and 1949. Whether it will get even worse after that, here, as it did after 1950, there, remains to be seen. But if you want to know the broad outlines of what's coming, Pulitzer Prize-winning author Anne Applebaum’s amazing book, Iron Curtain: The Crushing of Eastern Europe, 1944-1956, needs to be put on your must-read list.  Cold War Eastern Europe, like ancient Rome, is another helpful subject to review in analyzing what a non-Christian Western society will look like.  But the story of Soviet-dominated Eastern Europe brings us some glimmer of hope: the Catholics of Poland refused to give the government and the Party the same legitimacy, in their hearts, that they gave to their Church, and in the end, after whole lifetimes were lived under militantly secular oppression, freedom was restored.  So follow up Applebaum’s book by reading, The President, the Pope, and the Prime Minister, by John O’Sullivan, which tells the end of the story, and may give you hope that totalitarian left-wing secularism can be endured long enough to someday be defeated by faith. Give these books to your grandchildren, to read in secret in the basement. 

What We Have Lost

In the meantime, it might be worthwhile to contemplate what we have lost, as the hope for its restoration may give us the motivation to fight on, if only in secret, in hopes for a better tomorrow. Herewith, a non-exhaustive list of key principles which Post-Christian Western civilization has decided to forego, and the consequences of these losses to ourselves, our children, and our grandchildren: 

Loss 1: The Abandonment of Christian Sexual Morality and the Best Interests of Children which Were Advanced Thereby.  

I have written elsewhere on the history of the decline and fall of the Christian sexual ethic, which displaced and prevented (well, . . . at least postponed) Nero’s vision from becoming that of the entire Western world: 


http://www.mytakesonthat.com/2013/09/is-americas-decline-and-fall-inevitable_9703.html

Suffice it for present purposes to note that the Christian sexual ethic which has governed the outlook of humankind in the West for most of the past 17 centuries could be thought of as an arch which protected the children who were sheltered beneath it.  Christian sexual morality performed this function by ensuring that the bonding right of every child to know and be loved and reared by her own mother and father, would never be intentionally taken away, except when in the best interests of the child, and not merely to gratify the desires of any adult.  The keystone of that child-protecting arch was conjugal marriage between a man and a woman, and with that keystone removed, the arch has fallen, and the children previously sheltered by its protections will be the victims of that calamity, deprived of either their mother or (almost always) their father, and told that they must not only accept and adapt to this loss, but may not mourn it, and must instead celebrate it.  It seems that every generation perpetuates its own new lies about the separate but supposedly equal institutions it establishes for its children, in the name of what the adults want to do.   

Loss 2: The Loss of Respect for Objective Reality   

The West advanced beyond other corners of the globe based on its discovery and implementation of the scientific method: observe those material realities which are capable of observation, hypothesize about those realities, test the hypothesis, determine if the test’s outcome can be recreated and is therefore demonstrative of the true nature of that which is being tested.  Niall Ferguson has called the scientific method one of Western civilization's "Killer Apps", which led to the West's ascendance over the rest of the globe in the past five centuries. http://www.pbs.org/wnet/civilization-west-and-rest/killer-apps/

But science requires working and living in the world of objective reality.  And that is no longer permissible.  

Instead, we now live in a world where words have no objective meaning, and a reader's personal understanding of a text trumps the author's intention, not just in poetry, but also in law. Subjective reality now trumps all sorts of objective facts. A white woman can insist that she is black. An able bodied person can insist that he is disabled.  And Bruce Jenner can insist he is a woman, despite the evidence of his chromosomes, his anatomy, and the children he has sired. Such fantasies would be no cause for any real alarm if they were maintained privately.  But when a United States Governmental Agency, such as OSHA, declares that the nation's private employers must jump through the same looking glass, as they implement restroom policies and assess the diversity, rather than the competence, of their staff, something has gone amiss.  And woe be to the man who fails to prove his virtue by keeping silent, and instead ventures to question whether the new subjective emperor has any clothes.

The mindset can best be understood by studying the history and meaning of the left's fascinating new term: "Cisgendered" which is used to describe a person who “identifies” with the sex she was “assigned” at birth. The word "assigned" is the key to the imagery meant to be invoked.  You are not male or female in any objective sense.  Rather, shortly after your birth, an aging white male member of the patriarchy in a lab coat walked into your nursery, and, while you were innocently sleeping, arbitrarily and capriciously “assigned” you your sex, cackling away as he wrote it on your Birth Certificate.  The Bastard.  

And so we have school districts in North America implementing policies preventing teachers from using words like boys, girls, men, women, or their accompanying gender pronouns. Will there be exemptions for biology teachers, so they can teach the basics of human sexual reproduction?  I wouldn't count on it.  Allowing biology teachers to teach the basics of human sexual reproduction would destroy the whole point of banning gender pronouns in the first place.  Heaven forbid that young biologically informed Patrick, upon meeting Heather and her two mommies, might stumble upon the depraved thought that Heather doesn't really have two mommies, and must have a daddy somewhere, who has been treated as expendable, and of whose presence Heather has been deprived.  

Loss 3: The Loss of Respect for Faith, and of Legal Protections for the Faithful. 

Science is not the only way to learn about truth.  There are also immaterial realities for which we rely upon revelation, rather than observation.  As Dallin H. Oaks, put it, "we believe there are two dimensions of knowledge, material and spiritual.  We seek knowledge in the material dimension by scientific inquiry and in the spiritual dimension by revelation.” 
http://www.mormonnewsroom.org/article/fundamental-premises-of-our-faith-talk-given-by-elder-dallin-h-oaks-at-harvard-law-school

As G.K. Chesterton (another author whose books will be vital reading in our children's secret basements) similarly explained: "The man who cannot believe in his own senses, and the man who cannot believe in anything else, are both insane."  They are both boxed in a cell of their own devising, said Chesterton, on which can be written "He believes in himself."   This is a perfect description of the modern West, which exalts the subjective, and rejects both objective reality and religious faith as legitimate sources of truth, in favor of personal opinion.  Justice Kennedy made the exaltation of subjective opinion official in his notorious magical mystery passage from Planned Parenthood v. Casey: "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life."   Chesterton would recognize this as a long-winded way of saying "he believes in himself."  Where can we turn for truth? To the Bible?  To Aristotle? To science?  To the Declaration of Independence?  To the Constitution?  No, no, no, no, and no. To one's own personal subjective conceptions and opinions.  

And if one's own personal conceptions, enshrined as the heart of Constitutional liberty, are offended by another's religious beliefs, when publicly exercised?  Then of course, the latter must give way to the former.  (The First Amendment speaks of the "free exercise" of religion, but certain politicians and jurists are increasingly uncomfortable with that terminology, and prefer to employ the phrase "freedom of worship" not of "exercise". The majority in Obergefell for example, in claiming that their decision would not unduly impact faith, made no reference to free exercise. Perhaps some words really do have objective meanings after all, and must therefore be ignored and avoided.)  The great analogy repeatedly made and employed by the same-sex marriage movement has been a comparison to the civil rights movement.  It is a false and an evil analogy.  But it has been accepted.  And that means the rest of the story will play out as follows: If you oppose same-sex marriage, or did so before the Supreme Court’s recent diktat, you are deserving of the same kind of scorn which we have heretofore reserved for members of the Ku Klux Klan. Your right to dissent, to speak out, to exercise your own religious beliefs in how you conduct your own personal or business affairs is simply not worth preserving.  You may go to Church, if you must, but what you say and do there must be kept within the walls of your own Church and your own home, and never acted upon any where else.  Contra Madison, the demands of the secular state now take precedence over the demands of faith.  Step into the street, and you must not only tolerate, but celebrate and perpetuate and embrace your neighbor's personal concepts of existence, of meaning, of the universe, of marriage, of gender, and of the mystery of human life (so long as those personal concepts are not based in religion).  Or else.  

Loss 4: The Loss of Checks, Balances, Separation of Powers, and the Rule of Law.  

We now live in a nation which still calls itself a democratic republic, but is in fact only governed as such with and by the leave of the other two branches of government, when they find it convenient.   And when they do not find it convenient? The Executive branch issues Executive Orders, and its vast bureaucracy issues kabillions of pages of annual federal regulations, to override the laws passed through merely democratic processes.  And the Judicial branch no longer even pretends that it must tie itself to the text of the Constitution as understood and intended at the time the provision in question was written or amended, to validate their decision to strike down a law they happen to personally disagree with, as supposedly Unconstitutional.  Instead, they strike down disfavored laws based on how they the Justices determine the words of the Constitution should be read today, in a process of perpetual judicial amendment.  We claim to honor the rule of law, but in fact honor the rule of lawyers, especially lawyers in robes. When Judges act like legislators, real legislators, and the voters who put them there, become obsolete.  And when men are governed by laws written in words which judges and bureaucrats can read as meaning something entirely different than what the words actually say (because words mean whatever, subjectively, a judge or a bureaucrat wants them to mean) then men are not governed by laws at all, nor by the elected legislators who enacted them, but are governed instead by sympathies and emotions and refs with money on the game.  

It has been said that bad laws are among the chief enemies of the rule of law.  So are bad lawyers, especially the ones wearing robes.  I was not and am not a fan of Cliven Bundy and his Jacobin resistance to the rule of law.  But every time the judiciary makes stuff up (which they did not do in Bundy's case, but have done in many others), they encourage more such Jacobin resistance among a populace which cannot fathom why they should be bound by laws if their government is not.    

http://www.mytakesonthat.com/2014/04/what-lance-armstrong-and-cliven-bundy.html

The modern citizen agrees or disagrees with a Supreme Court Decision depending on whether or not he likes the outcome, not based on whether the outcome was in fact compelled by the language and intent of the Constitution.  

Our world no longer employs or understands the analogy of different hats, such as: When I go into the voting booth I am wearing a different hat than when I as a Judge preside over a trial.  When I go into the voting booth I am wearing a different hat than when I as a journalist report the news. When I go into the voting booth I am wearing a different hat than when I as a college professor teach history.  A nation without hats is a nation without separation of powers.  A nation without hats is no longer made up of three governmental branches and a fourth journalistic estate to act as checks and balances upon each other.  The root source of this loss of hats is easily found: the self-anointed's belief that the virtuous cause of social justice (however they are defining it this week) is more important than the ends utilized to obtain it.  The ends they seek are so righteous and so virtuous and so important, that any means justify these noble ends: Gay marriage is more important than the proper role of the judiciary in a constitutional republic.  And so are a lot of other things. Getting a favored Presidential candidate elected is more important than practicing honest and objective journalism about any subject which might discomfit the cause.  And so are a lot of other things.  Telling the next generation what to think, and training them up to be warriors for social justice is more important than teaching University students facts and how to think.  And so are a lot of other things.   Challenging the traditions of the patriarchy is more important than a federal government which is sovereign solely as to its own limited and enumerated powers.  And so are a lot of other things. Shutting people up who do not think the way they are supposed to think, so we can silence them, rather than debate them, is more important than the First Amendment.  And so are a lot of other things.  

We have forgotten some of history's most important lessons: that the road to Hell is paved with good intentions; that no matter how virtuous the ends are which a beneficent dictator may seek, or even realize, relying on dictatorial power to achieve such ends leaves the populace at risk of the evil ends which the next dictator may use his power to achieve. A Marcus Aurelius will inevitably, eventually, be succeeded by a Commodus.  The same judicial power grab which gave us Obergefell previously gave us Dred Scott.  The doctrine of ends which justify procedurally improper means is fit for Saddam Hussein’s Iraq or Pol Pot’s Cambodia or Fidel Castro’s Cuba.  But not for America as its institutions were once understood by anyone who had passed 5th grade civics. The whole point of the clunky procedural safeguards, separation of powers, and checks and balances in our Constitutional system is to differentiate America from nations where the government's most powerful officer or officers, can do whatever they want to, just because they think it's a marvelous idea.  To live in a world where any officer of the government can do whatever it thinks would be a marvelous idea, is to live in pre-Christian Rome or post WWII Eastern Europe. As post-Christian America becomes increasingly similar to such places, it won't just be the elderly believers in our culture's former Judeo-Christian values who find it an unfortunate place to live.  It will be everyone who holds no government office. 

Christianity and Society

Each of the losses described above are, in their own way, based on the loss of a Judeo-Christian frame of reference.  

The Christian not only believes in a Child-centric sexual morality, and a Government which protects his rights to religious liberty.  He also has little use for placing too much power in the hands of too few elites.  It is no mere coincidence that the French Revolution, steeped in anti-Clericalism, rejected a system of separated powers which might have checked and balanced the new regime's leaders, and prevented the bloodshed of the Terror into which that revolution fell as it consumed its own children.  Or that America rejected not only the Anti-Christianity of Thomas Paine, but also his call for a unitary government led by a single assembly.  

The Christian understands that humanity is fallen, and that a Utopian Eden may not be reclaimed by human efforts, but only by divine grace in God's due time. This tragic understanding makes him suspicious of major societal transformations, in an attempt to build a tower to God, or create a new Utopian Eden through the efforts of man. Such societal transformations inevitably come with unintended consequences, far worse than whatever evil is sought to be remedied through their implementation. Knowing that man is not an angel, but is fallen, and prone to corruption, the Christian citizen fears the evil the all-powerful can do, more than he cherishes the hope of the good they might accomplish, and favors dispersed and separated powers.  He doubts the ability of any one fallen man, or few fallen oligarchs, to govern wisely and show the way to a better future, unrestrained by tradition or majority opinion. History has proven the Christian view to be correct.  But a Nation which no longer reads history, and gets its values from cable television rather than Judeo-Christian scripture, has set a new course. 

Again from G.K. Chesterton, in Orthodoxy:  "The one specially and peculiarly un-Christian idea is the idea . . . that the man should rule who feels that he can rule.  Whatever else is Christian, this is heathen.  If our faith comments on government at all, its comment must be this--that the man should rule who does NOT think that he can rule. . . .   [W]e have not got to crown the exceptional man who knows he can rule.  Rather we must crown the much more exceptional man who knows he can't."   From this perspective, the most post-Christian characteristic of the modern Supreme Court is not their views on sexual morality, or their ruling on the meaning of marriage, but their lack of judicial restraint in overturning laws they don't like, without any constitutional basis, on questions where the Constitution is silent.  They are not post-Christian merely because their morality is post-Christian. They are post-Christian because of their certainty that they are fit to make these decisions free from democratic restraint, check, or balance.  They are post-Christian because they are far too comfortable in their crowns.  

James Madison: A Federalist and a Republican (Part 2 of a Review of Lynne Cheney's biography, James Madison, a Life Reconsidered)

{This is PART 2 of a Review of James Madison: A Life Reconsidered, by Lynne Cheney.  For PART 1, See:  http://dadsbookreviews.blogspot.com/2014/10/some-thoughts-on-religious-liberty.html}


Lynne Cheney, in "James Madison: A Life Reconsidered" is not simply writing a biography.  Rather, like McCullough on Adams and Chernow on Hamilton, she is engaging in an act of advocacy. Cheney likes Madison, agrees with his views, and wishes to promote his importance in the American pantheon. Thus, she arbitrates every historical argument in his favor, and places him in the best possible light on every question and in each episode of his life.  I don't have a problem with this.  I actually like to understand how people saw themselves, and a sympathetic biography which argues its subject's side of every story is not a bad place to start.  I'm always in favor of a little hagiography when it comes to the founders.  I do love the Fourth of July.

Nevertheless, such advocacy can have its pitfalls, if it causes an author to gloss over tough issues, and thus skip over the most fascinating questions. Hence, the second big problem I had with Cheney's book is that it leaves largely unexamined the great conundrum of Madison's life: how to explain his sudden shift, once the Constitution was created and its Bill of Rights securely in place, from being the nation's leading Federalist, to its second most important Republican.  Indeed, given Cheney's sympathetic tone throughout, the reader can be excused for feeling a bit of whiplash as Cheney warmly admires Madison's achievements on behalf of nationalism in one chapter, only to have his arguments against federal power spoken of with equal fervor and admiration in the next.

Madison left the Constitutional Convention in Philadelphia terribly concerned that, should the delegates' handiwork be ratified, the resulting U.S. Government would not be nearly as strong as he had hoped. If he was bitterly disappointed that the small states had won the battle for equal representation in the Senate, he was even more completely mortified that the national government would have no veto right over state legislation.  This national veto over state laws had been a key element of Madison's Virginia plan, which, to his horror, had been unceremoniously rejected from the Constitutional text.  How is it possible that a man with such views would, just a few short years later, work with Jefferson to craft the nullification resolutions in Virginia and Kentucky, arguing for exactly the opposite policy: that federal legislation should be subject to state veto?  How exactly does one understand this great irony?

For Cheney, a few brief remarks from Madison suffice:  Madison was interested in equipoise.  Under the unwieldy articles of confederation, the power of the individual states had made it impossible for anything of national importance to be accomplished in a unified fashion.  Once the Constitution had rectified this imbalance, it became equally important to prevent the national government from becoming overly powerful, and prevent the individual states from pursuing their own best interests. But such equipoise would never have been maintained under the Virginia Plan which Madison had brought to Philadelphia, and which he was so disappointed to walk away from Philadelphia without achieving (until he realized his original handiwork could never have been ratified by the States). So other factors were clearly at work in Madison's turnabout.

As it turns out, far more interesting theories than his own self-serving explanations abound.  Cheney's book would have been more interesting if she would have examined them. Instead, the reader is left to other sources.  For a pro-Madison viewpoint, one can review Gordon Woods' book, Revolutionary Characters, in its chapter entitled "Is There a James Madison Problem."  For a more cynical and much more interesting take, Joseph J. Ellis, in his book, American Creation, has examined the question in a chapter entitled "The Conspiracy." Both are great reads, and examine theories such as the following:

Was it Jefferson's influence?  This seems highly likely.  Madison always deferred to Jefferson's wisdom (although he also played an important role in bringing Jefferson's poetic rhetoric down to practical earth: a subject which Cheney does a great job on in some of the most enjoyable passages of her book).  Madison's turn away from Federalism and towards Republicanism accompanied Jefferson's return from France to take up a post in Washington's first Constitutional administration and was developed during a cruise up the Hudson river the two of them took together in 1791.  The fact that, late in his life, Madison would, once again, become an important voice in favor of the Union, during the nullification crisis of the 1830s, after Jefferson had passed away, lends further credence to this idea.

Was it just good politics?  The debate over whether to ratify the constitution had been particularly ugly in Virginia, where it had taken all of Madison's abilities to withstand the arguments of Patrick Henry and his fellow anti-Federalists against ratification, and eke out a narrow victory for the union cause. To the extent that anything the federal government did ever seemed to favor northern over southern interests (an inevitability in future compromises), the narrow support the Constitution had received in Virginia was likely to soon vanish.  Madison could only hope to remain in politics if he was elected to national office from his home state of Virginia.  And since only States-rightists were going to get elected in Virginia, Madison's about-face may be explainable via the most prosaic of all political realities: he simply did what he needed to do to get elected.  The same practical politcal strategy which has been followed by every politician who has ever tacked to the left or right during a primary, and back towards the center in a general election, was, perhaps, invented by Madison, who has been called not only the father of our Constitution, but also of our politics: If you want to serve in elective office, stand with the people whose votes you need.

Was it about slavery?  Any purely political reasons for Madison's turnabout raise the question of why Virginia politics required successful politicians to be wary of federal power in the first place. One obvious answer is the "peculiar institution" of slavery, which sourtherners feared a northern dominated federal government might one day abolish, as indeed ultimately occurred. The niceties and political hypocrisies of the day prevented any open reference to this subject by Jefferson or Madison as a motivating cause of southern political preferences.  (It was apparently somewhat annoying, when waxing eloquent on the thesis that the greatest capacity for republican virtue lay among southern agrarian planters, to be reminded that those same planters were engaged in the most obviously immoral, unvirtuous, and tyrannical activity ever known to man.)  Nevertheless, as argued by Ellis, the very silence of the southern founders on the question of slavery may be the best proof of its elephant-in-the-room status, and later Virginia politicians would be more forthright: "Tell me if Congress can establish banks, make roads and canals, whether they cannot free all the slaves in the United States."  Nathaniel Macon, as quoted by Joseph J. Ellis in American Creation, (Vintage 2007) at p. 175.  Slavery certainly played a role, and Americans who, today, find themselves overly enamored with Jeffersonian rhetoric about about republican virtue, would do well to temper their enthusiasm with a little salt.  In the ultimate test of regional virtue, the Civil War and the fight to abolish slavery, the Republican Jeffersonians were not only on the losing side of history, but the morally wrong side as well.   As Lincoln said, if slavery isn't wrong, nothing is wrong.  It took a strong federal government to end slavery, and then to end Jim Crow, and it took a union much stronger than anything Jefferson envisaged to fight the 20th Century's various forms of anti-republican totalitarianism.

Was it about economic ignorance?  Madison's shift from federalism occurred when he opposed the financial programs and policies initiated by his former friend (and collaborator on the Federalist Papers) Alexander Hamilton, during Washington's presidential tenure.  Hamilton's financial program was modelled after British institutions and policies which had allowed that nation to become among the most prosperous on earth.  Hamilton had spent years of private study learning about those institutions, and the implementation of Hamilton's proposed legislation during his tenure as America's first Secretary of the Treasury make him the most successful and important person to ever hold that office.  The Hamiltonian program allowed the new nation to finally gain a secure financial footing, which it had sorely lacked from the date it declared its independence, and laid the foundations for subsequent free market capitialism which would make Americans among the most socially mobile people on the planet.  Nevertheless, that program's implementation was fought by Jefferson and Madison every step of the way, and with an increasingly paranoid righteous fervor, which, as Ellis points out, can only be completely understood in light of the fact that Madison and Jefferson didn't understand the first thing about economics, and couldn't begin to comprehend many of the principles which Hamilton was talking about.  For all their political genius, Jefferson and Madison were no economic Einsteins: both men would die broke and deeply in debt.

Whatever the cause of Madison's dramatic turnabout, Cheney need not have shied away from this fascinating question, which ultimately strengthens her hero's claim to preeminent importance in American history.  Because Madison's reversal may be the most important thing he ever did for the Constitution.

In a sort of "only-Nixon-could-go-to-China" moment, by joining the ranks of the anti-Federalists, Madison turned them into something other than anti-Federalists.  He tranformed the anti-Federalist movement into Jeffersonian-Republicanism, whose new agenda no longer included overturning the Constitution, but, instead, simply seeking to interpret the Constitution narrowly, and in such a way as to limit federal power.  There is probably nothing Madison could have done to more powerfully secure the ongoing existence of the Constitution, then to thus end any debate over it's continued existence.  By converting the political movement known as anti-Federalism into small federal government republicanism, Madison ensured that the Constitution would survive.  When Jefferson came to office, he did simplify and shrink the size of the Federal Government.  But he didn't overthrow it.  Much of the Federalist program which had been developed over the past 12 years remained in place.  And Jefferson was canny enough to ignore his own limited-government principles when they might stand in the way of important national interests, such as the Louisiana Purchase.

In the meantime, Madison became the father of America's first opposition political party, and introduced party politics into American life.  As much as Americans may claim to hate partisanship, political parties played an important role in the ongoing existence of the union, and continue to stabilize the country today. After the Republicans replaced the Federalists in office, it was no longer possible for any future government to treat its mainstream political enemies as insurrectionist threats to the legitimate government, as the Federalists had done when they passed the Alien and Sedition Acts.  Rather, political parties, and the eventual tradition of those parties finding themselves peacefully rotating in and out of power, gave us a nation which had to tolerate and give credence to the idea of a loyal opposition.  This helped America avoid the fate of other post-revolutionary societies, where the guillotine or the coup d'etat was the only way for transitions of power to occur.

All hail to James Madison, one of the most important fathers of our freedoms.  Someday someone will write a book about him which does him greater justice.  But for now, Cheney's extremely readable and engaging tome will have to do.

Some Thoughts on Religious Liberty. A Review of Lynne Cheney's James Madison, A Life Reconsidered, Part I

The first thing to know about James Madison, A Life Reconsidered, by Lynne Cheney (yes, that Lynne Cheney) is that it is very well written.  Cheney knows how to tell a good story, and the book is an engaging page turner.  The chapters on young Madison's involvement in organizing and securing the attendance of George Washington at the Constitutional Convention in Philadelphia, his advocacy for the Virginia Plan at that convention, the writing of the Federalist Papers, the debate against Patrick Henry and Henry's fellow anti-federalists to secure Virginia's endorsement of the Constitution, and the enactment of the Bill of Rights, Madison's most important achievements, each in its own way absolutely fundamental to creating the nation in which we now live, are especially compelling. If Madison was not the father of our Constitution, he was certainly its midwife, and this book deserves to be widely read if for no other reason than to tell that remarkable story.

It is therefore incredibly frustrating that I cannot give the book my full endorsement and that I was so severely disappointed in certain aspects of Cheney's narrative.  My most significant concern is with Cheney's botched treatment of Madison on religious liberty, a subject on which she gets seriously sidetracked by a pet theory which leads her far, far, astray.  Religious liberty is a subject which could not be of greater importance, and on which we need a true account of Madison's views, now more than ever.  Cheney refuses to give us one.  

Madison's Contributions to the Cause of Religious Liberty

Madison should be seen as one of the great heroes of American history, not only due to his role in forming the union, but also for his great achievements in advancing the cause of religious liberty and freedom of conscience.  His primary contributions to that cause are fourfold, each of monumental and hopefully enduring significance: 

1.  First, as a young, new, and still obscure member of the Virginia legislature which found itself in need of creating a new form of state government in the wake of the colonies' declaring of independence, Madison got himself appointed to George Mason's committee for establishing a Declaration of Rights and a Constitution for Virginia.  Mason wrote an article on religious freedom for the Declaration which was based on Locke's wording, about as far as the ball had been taken up until that time: "all men should enjoy the fullest toleration in the exercise of religion, according to the dictates of conscience, unpunished and unrestrained by the magistrate."  But Madison was ready to advance the cause further than Locke.  Showing his political savvy, he worked through other, older and more prominent committee members, to obtain a rewording of the section into a statement that went beyond mere "tolerance" for minority or dissenting religous opinions: "all men are equally entitled to the free exercise of religion."  Equal freedom to exercise one's religion would now be recognized as a civil right in the largest and most influential of the 13 original colonies.

2.  Madison's second great contribution to the cause of religious freedom was his successful fight against a Virginia bill which would impose governmental taxes for the support of Christian churches. Having served my mission in a country where the two official religions were supported by church taxes administered and collected by the state, and your religion was considered a mere "association" (not a church) if its members tithed themselves voluntarily, I'm especially appreciative of this principle. Madison waged this particular fight through his anonymous authorship of the "Memorial and Remonstrances Against Religious Assessments" which killed public support for the bill.  The Memorial and Remonstrances is a remarkable document, which deserves to be far more widely read and remembered today than it is, setting forth, as it does, both the best possible theological arguments of a believing Christian, and the most compelling secular and political arguments of a gifted lawyer, for its assertions.  The document ought to be especially appreciated by Latter-day Saints, for its argument that Christianity existed in its purest form before it was corrupted by integration with the organs of the state, in passages which might have been written by an early Mormon Apostle explaining the apostasy and need for a restoration, and which one can imagine having been a familiar passage among early converts to the LDS faith:

"[E]xperience witnesseth that ecclesiastical establishment [i.e., establishments of religion, 18th Centuryese for official state churches], instead of maintaining the purity and efficacy of Religion, have had a contrary operation. During almost fifteen centuries [i.e., since the 3rd Century official incorporation of Christianity into Constantine's Roman Empire] has the legal establishment of Christianity been on trial. What have been its fruits? More or less in all places, pride and indolence in the Clergy, ignorance and servility in the laity, in both, superstition, bigotry and persecution. Enquire of the Teachers of Christianity for the ages in which it appeared in its greatest lustre; those of every sect, point to the ages prior to its incorporation with Civil policy."

3.  Madison's third important contribution was utilizing his increasing political savvy and influence, as well as the political momentum generated by the Memorial and Remonstrances, to shepherd into law the Virginia Statute for Religious Freedom, authored by Thomas Jefferson, his life-long mentor. Madison was so enthusiastic about this victory that he wrote Jefferson exulting that he flattered himself that he and Jefferson had "in this country extinguished forever the ambitious hope of making laws for the human mind." Clearly, Madison, for all his foresight, could not predict 20th Century liberalism and political correctness.  Still, his vision proved true for many years to come, and has only in recent decades begun to crack under the weight of modern liberal puritanism and intolerance for dissent.  

4.  Finally, Madison was the chief advocate in the first Congress for passage of a Bill of Rights, including the First Amendment, whose final language was not quite as powerful as it could have been (had we stuck with Madison's original proposed language) but has, nevertheless, protected us against offical state religions (via the establishment clause) and against prohibitions on our freedom of religious exercise (through the free exercise clause) ever since.  

Ironically, in light of the ultimate importance of the Bill of Rights in modern American life, Madison's views on the subject were ambivalent.  He felt, initially, that a bill of rights was unnecessary. The federal government was supposed to be a government of enumerated powers in any event, and thus could not pass laws on subjects (such as gun ownership or religious establishments) beyond the scope of those limited powers which had been delegated to it, if such laws would infringe on areas which were left to the State governments of general jurisdiction.  Not only was a bill of rights therefore redundant, but such a list might confuse and dilute Americans' understanding of these systemic Constitutional workings and the protections they were designed to afford (as, indeed, some modern scholars argue has taken place). Nevertheless, upon realizing that the lack of a bill of rights was the most effective argument the anti-federalists were using to agitate for a second constitutional convention, where they could reject the Constitution outright and stymie the creation of another such document, Madison eventually reconciled himself to the idea, if primarily for political purposes, even coming to believe that a listing of such rights would have the salutary effect of making them well known to future generations of Americans who would thereby be more likely to jealously safeguard them, a truth which, as Cheney argues, could be attested by millions of future children, introduced to the Bill of Rights on their elementary school classroom bulletin boards. And so it was that, primarily with Madison's nudging and prodding and drafting and exhorting, the First Congress took time from other matters most of its members felt to be more important, to formulate the first Ten Amendments to the Constitution, and provide us with the Bill of Rights, which would prevent a second constitutional convention from ever being held, preserve the continuing support of the States whose ratification of the Constitution had been conditioned on the inclusion of such a listing, and thus save the Constitution from an early demise.  With the passage of the 14th Amendment, the Bill of Rights was no longer a mere instrument of federalism, delineating the boundaries of the federal government's law-making powers, but became a protection for all Americans against any encroachments of their rights by both national and local governmental entities, including, under the First Amendment, the right to freedom of religious exercise, and freedom from official state or national churches.    

Cheney's Epileptic Theory

Cheney has developed a theory on what motivated Madison's devotion to the cause of religious liberty, and it goes like this: (1) Madison suffered from occasional debilitating symptoms which he (rightly, and ahead of the science of his time) recognized as symptomatic of an affliction which was likely related to epilepsy, and perhaps a form of epilepsy, a view which modern science confirms.  (2) The Christian dogma of Madison's day treated epilepsy as a sign of spiritual uncleanliness, related to the stories of demon possessions in the New Testament.  (3)  Madison would have been familiar with this Christian dogma and would have been deeply troubled by the same, and would have grown to resent it. (4) Therefore, Madison would have been motivated to oppose political support for religious dogma, as a result of his bitterness over the religious views of his day on this subject.  "Madison's zeal" Cheney writes, in the cause of "religious freedom--which both [he and Jefferson] saw as part and parcel of intellectual freedom" was "likely heightened by the misery he knew as a young man when he realizedthat Christian orthodoxy insisted on a supernatural explanation for epilepsy." (p. 72).

Cheney makes a fairly sound case for the first element of her theory, and I can accept it.  Point two seems fairly strongly supported as well, although it is a perilous thing for a 21st Century author to try to understand the religious sentiments of bygone eras, and she may be on more shaky ground here.  I find for example that when outsiders write about my faith, even those who are writing in a manner which is friendly or neutral, something nuanced often gets lost in translation, which I am sure is true of my own understanding of other religions as well.  The words are correct, but the emphasis is off, the focus misunderstood.  It's possible that something like that is happening here.  Cheney's portrayal of the official biblical exegesis of the day may be accurate, but how often did people actually talk about this stuff at the time? And how did the Christians of the day treat epilepsy among their own families and flocks?  This is harder to know, and Cheney may or may not be accurately explaining the true underlying views of the day.  

The third and fourth elements of the Cheney theory seemed to this reader to be extremely tenuous, and ultimately unsupported. Had Madison read all of the various statements of various classical and Christian authors on epilepsy which Cheney has found and quoted?  Who knows?  Was he troubled by them?  Perhaps.  But if so, he doesn't seem to have left any record of such concerns in letters or other writings, at least not that Cheney quotes (and, presumably, if the record was there, she would have drawn on it for support).  Did these concerns lead to a distrust of dogma and a belief in religious freedom of thought?  Again, if so, that process (much less the connection between that process and Madison's epilepsy) does not seem to be documented anywhere, other than in Cheney's speculations. Cheney assures her readers that Madison departed from orthodox beliefs in 1773 and 1774 (pp. 39-40), but her evidence for this claim is not based on any of Madison's writings (indeed, she states, he would not have "publicly" made an "issue" of his altered thinking--pp. 41-42-- which begs the question, how does she know to what extent his thinking had altered?)  Instead, Madison's unorthodoxy is said to be demonstrated by his increasing hostility during this time period to the privileges afforded the official state church of Virginia, and its treatment of minority religious groups such as the baptists.  These were, however, political positions, regarding the authority of organs of State government, which say nothing of Madison's private religious or doctrinal views, let alone how those private views were affected by official church dogma regarding epilepsy.   

In the end Cheney's theory is interesting, but not all that convincing.  Indeed, it's easy to speculate that what's really going on here has more to do with Cheney's life and resultant interests than Madison's.  Given Cheney's age and the majority attitudes of her generation during her younger years, and given her family's prominence in the more conservative of America's two political parties, it is not hard to imagine Lynne Cheney having held, for most of her life, fairly orthodox and traditional views on homosexuality, which she likely later grappled with, and to some extent, or perhaps fully, rejected, upon one of her daughters announcing her homosexuality and seeking out a same sex marriage.  It is not hard to imagine that Cheney's intellectual struggles in that regard may have been extremely similar to those which she now ascribes to and imagines for Madison, as he allegedly grappled with  the subject of Christian doctrine concerning epilepsy.  Her theory may therefore be more about projection than history.  

But now I'm engaging in unsupported speculation.

Whatever the reason for Cheney's development of this theory, and however well or poorly supported her reasoning, my main concern with the theory is its unfortunate and distorting effect on how Cheney tells the story of Madison's contributions to the actual tenets of religious liberty.  By assuming that Madison was motivated by his own bitterness over Christian dogma, Cheney gives us an anti-religious Madison, crusading for his cause based on hostility to religious belief, instead of the true Madison, upset by religious persecution.  This telling of the story, in turn, prevents Cheney from ever fully analyzing and appreciating both sides of the coin of religious freedom which was minted through Madison's efforts. 

The Two Great Pillars of Madisonian Religious Liberty 

There are two important principles of religious liberty referenced throughout Madison's writings and ultimately enshrined in the First Amendment: 

(1) First, the establishment clause principle: which is that the government should not officially recognize or endorse any religious institution or church as the official religion of the state (i.e., should not create what 18th Century Americans referred to as an Establishment of Religion, and what we today would call an Official State Church), but must be neutral towards the competing claims of differing religious sects.  This vital principle of religious liberty is most frequently referenced today under Jefferson's shorthand phrase: "separation of church and state." 

(A brief digression: some now argue this principle was provided to give us freedom from religion, rather than freedom from officially state endorsed religion, by requiring not only governmental neutrality among different religions, but between religion and irreligion.  One of the best and most concise historical arguments against this overzealous understanding of the establishment clause may be found by reading Justice Rehnquist's dissenting opinion in the school prayer case of Wallace v. Jaffree, the entire text of which decision, including Rehnquist's dissent, can be found here:  http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=472&invol=38  It must however be recognized that, while compelling, Rehnquist's argument is provided in a dissent, which tells us where we are today.) 

(2) Second, the free exercise principle, pursuant to which the freedom to exercise one's religious beliefs was established and enshrined in our First Amendment, which freedom encompasses not merely the freedom to worship or to privately hold religious beliefs, but to exercise, or act upon, the same, without being unduly constrained by governmental fiat.  

In Cheney's telling, the first of these important principles is misconstrued, and the second is simply ignored, with Cheney's version of Madison coming across as a man far more concerned with freedom from religion than freedom for religious exercise, a distortion on both counts.  With respect to the establishment principle, it is true that Madison was deeply opposed to establishments of religion, fighting against the privileges enjoyed by Virginia's official church, and to ensure that no national church would be established.  But nothing he wrote for the cause of religious liberty suggests any hostility to private churches and religious institutions. With respect to the free exercise principle, Cheney's telling, necessarily, omits Madison's maintenance of the right to exercise one's religion free from constraint.  An uninformed reader of Cheney's tome would easily assume that Madison cared solely about freeing citizens from religious influence, and not a whit for protecting citizens' rights to freely exercise their faith.  

But the real Madison cared just as deeply for the right of a citizen to exercise his religious beliefs as he did for disestablishing official state churches, as proven in the record of Madison's actual words, set forth within his actual achievements.  For example, his preferred language in the Virginia Declaration of Rights retained the language concerning "free exercise" of faith.  The Memorial and Remonstrances against Religious Assessments included a passage describing the exercise of religion as not only a right but also a duty, and not only a duty, but a duty which took precedent over the duties one owed to the state, and which, until exercised, even prevented full acceptance into civil society:  "It is the duty of every man to render to the Creator such homage and such only as he believes to be acceptable to him. This duty is precedent, both in order of time and in degree of obligation, to the claims of Civil Society. Before any man can be considered as a member of Civil Society, he must be considered as a subject of the Governour of the Universe: And if a member of Civil Society, who enters into any subordinate Association, must always do it with a reservation of his duty to the General Authority; much more must every man who becomes a member of any particular Civil Society, do it with a saving of his allegiance to the Universal Sovereign."  This is hardly the statement of a latter-day atheist, concerned with protecting the citizenry from any religious influences, in favor of allegiance to the secular State.  The line about saving one's precedent allegiance to God is especially salient to certain modern controversies: Madison would likely have approved of the words "under God" in the pledge of allegiance.  (Whether he would have approved of the pledge at all is a different question, and would depend on whether you were talking to Madison in the 1780s or the 1790s, but that's a subject for part 2 of this post.)

Madison's letter to Jefferson describing the passage of the Virginia Statute of Religious Liberty included the observation that it was supported by "a general convention of the Presbyterian Church" which had "prayed expressly that the bill . . . might be passed into a law, as the best safeguard short of a Constitutional one, for their religious rights." Again, this enthusiastic observation would not have been made by a man whose actions were motivated by anti-religious sentiment.  Finally, there is Madison's first proposed draft of what became the First Amendment, ultimately diluted by his colleagues, but which would have afforded even clearer protections for the faithful against governmental encroachment than what the final draft afforded: "The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed."  I can think of a number of recent State and Federal Court decisions upholding statutory infringements on religious exercise, which would have been decided differently had Madison's original language, protecting against such infringements "on any pretext" been both preserved and also followed.

Clearly, Madison was just as concerned with protecting religious freedom, including freedom of action, exercise and worship, as he was in preventing the establishment of a national church, and there is simply no evidence that his distaste for offically established religious institutions was based on any particular dislike of private religions or their doctrines.  It is truly tragic that Cheney's book, likely to be read for some time as the currently definitive single volume work on Madison's life, fails to get that part of the story right.  This tragedy is especially acute given the tenor of our times, which increasingly regards the establishment clause as a tool for the overzealous expulsion of religious sentiment from the public square, under the pretext of historically inaccurate and overly broad readings thereof, while at the same time ignoring the free exercise clause altogether.  These trends are shown by the recent need to shore up free exercise rights through legislation such as federal and state religious freedom restoration acts, designed to overcome court precedents which have allowed the free exercise clause to be ignored "on any pretext" available. This trend is also demonstrated by the recent backlash against those very RFRA laws, as in the liberal media's shallow and misleading excoriation of the Hobby Lobby decision applying the federal RFRA to Obamacare's abortifacient mandates, and the backlash against an Arizona bill which would have strengthened that State's RFRA statute.  Cheney's book could have helped to overcome these dangerous trends of our time, which bode ill for the religious liberty which Madison did so much to affirm and preserve.  Instead, Cheney's book may end up contributing to these modern misunderstandings and to the erosions of the Madisonian liberties which will inevitably follow.         

{For Part II of this Book Review, on Madison's shifting federalist and anti-federalist loyalties, see here: http://dadsbookreviews.blogspot.com/2015/01/james-madison-federalist-and-republican.html}

What Lance Armstrong and Cliven Bundy and Sonia Sotomayor all have in common.

THE RULE OF LAW VERSUS THE RULE OF MIGHT MAKES RIGHT

There are legitimate and illegitimate ways to win a football game.  The legitimate way to win goes like this: There are rules, objectively and equally applicable to all participants, and you win by playing in accordance with those rules.

There are even rules for the rules.  They are established in accordance with the bylaws of the league, as established by those who founded the league, or as revised from time to time by the current owners (in accordance with previously agreed upon procedures).  If the bylaws of the league make sense, then proposed rule changes will be discussed and voted on during the off-season, when no one is sure who they will benefit.  The rules are not changed during the middle of a game.  During the game, the rules are enforced by the referees.  Sometimes the refs make bad calls.  But the teams readjust themselves, and determine who is currently in possession of the ball, in accordance with even the obviously bad calls.  They do so because that’s one of the rules, and because to do otherwise would prevent the game from being completed.  If one side, being told they had lost possession of the ball, were to line up in an offensive formation and keep the ball anyway, then the other team would soon disregard the calls they didn’t like.  And the game would devolve into a brawl.

The illegitimate ways to win a game all involve one form or another of refusing to play by or recognize the rules:  Paying off the refs; taking out another team’s star player with a bit of unnecessary roughness; wiretapping the other team’s communications lines so you can hear their play calls; using performance enhancing drugs; or just plain refusing to abide by the rules. The people who engage in these behaviors have decided that winning is the only thing that matters.  But they are wrong.  You can make a living playing professional sports, or get a scholarship to play collegiate sports, because people will pay to watch.  But if the spectators don’t believe what they are watching is real, they’ll eventually stop watching.  And soon the teams playing the game will realize there was something more important than winning after all, namely, not becoming the WWF.  That’s why principled athletes and athletic organizations play according to the rules of the game, understanding that there’s something more important at stake than just winning.  But it’s easy to lose sight of that and become Lance Armstrong.

It’s like that in politics too.  We Americans have strong feelings about our disagreements.  Our Founders provided us with a set of rules which would allow us a system for resolving our political differences peacefully.  That system is important because it keeps us from going to war with each other every couple of years.  People at war end up dead, a condition in which one's politics cease to matter very much.  And even when they don’t end up dead, they end up hungry, unable to peacefully and securely harvest their crops, educate their children, coach soccer, or enjoy a night out at the movies.  Principled people understand that our unified need to maintain civic peace and avoid civil strife are more important than almost any political question which might otherwise occupy our minds.  Therefore, they play politics in accordance with the rules, realizing that they will sometimes lose, their personal policy preferences will sometimes not be implemented, and they will have to live with it, even if they believe, deep within their hearts, that this means the world will become a worse place, or even if the loss affects them personally.  Unprincipled political players have come to believe so much in the infinite wisdom of their own personal policy preferences, that they are willing to cheat in order to see those preferences win the day, no matter what, the ends justifying the means. Principled people know better. They are willing to accept political outcomes with which they deeply disagree (at least until the next election) as preferable than playing outside of the rules: because they understand that if one side starts cheating, the other side will start cheating too, and soon, instead of an orderly process for resolving our legal and political differences, we’ll get a civil war, anarchy, and what civil war and anarchy almost always lead to: tyranny.  Principled people play out political and legal disputes in accordance with the rules, so their country doesn’t become Somalia, just like principled athletic organizations do what it takes to keep their league from becoming the WWF.

Here's a test to determine which camp you, or someone you know, may fall into. How do you feel about 
some recent, or some famous, U.S. Supreme Court decisions?  A non-principled partisan's opinions will always be results based.  If you favor abortion, or gay marriage, or Obamacare, or law X, you will support any judicial decision which upholds or creates (or pretends to find in the Constitution) a right to these things. If you disfavor these things, you will disfavor the rulings which uphold these things, every single time and without exception.  By contrast, if you are a principled person you will, at least once in a while, be able to say something like this: “Personally, I think that law is stupid, but I don’t see how it’s unconstitutional. Elections have consequences.  The congress did something stupid, but the Court has no power to fix it.”  Or: “Personally, I believe we should/should not change the definition of marriage. But I don’t see anything in the Constitution as currently written that requires that.  It’s a political question for the electorate.”  None of us are perfectly capable of intellectual honesty on all political questions.  So this is not a test that will be passed often.  But if you, or someone you know, have never made any such statement, because you believe that each and every one of your personal political opinions are a matter of “Constitutional rights” or "fundamental human rights" and not merely a matter of your own personal policy preferences and political opinions, allow me to suggest that it is such thinking that is part of the problem. Why?  Because it is people who believe such things who end up arguing that the ends justify the means, and that we should resolve all of our differences via assertions of power, unhinged from principle, to get our own way, in a might-makes-right world.  And where there are lots of such people in a nation, they endanger ordered liberty and self-government.

As Dallin H. Oaks has stated: "[I] urge that we be more careful in the way we throw around the idea that something is unconstitutional. A constitution should not be used as a weapon to end debate. A public policy or a proposed law that is unwise is not necessarily unconstitutional. Even if it is a stupid proposal, it is not necessarily unconstitutional. A constitution gives the people and their elected leaders the opportunity to make many decisions that are unwise or even reckless. When that happens — when the government or one of its officials engages in some kind of action that we consider to be wrong — we should engage in vigorous public debate about it. But we should not use up a constitution by attempting to strike down every ill-conceived act of government or to discredit every unwise official. A constitution is the ultimate weapon, and we preserve that weapon best by using it sparingly and carefully. If we call some action unconstitutional, we should be prepared to explain what provision or principle of a constitution it violates."  Likewise, Justice Scalia has called for the issuance of an "SBC" stamp to new judges, which would stand for "Stupid But Constitutional."

In much of the world, no system exists for the peaceful resolution of political and legal differences. People in Somalia don’t get to debate the relative efficacy and fairness of a flat versus a progressive tax structure, affirmative action, same-sex marriage, appropriate grazing fees on land owned by the central government. Instead, people in Somalia have to figure out how to survive and eke out a living in a country where there’s no economic infrastructure or political stability, and whether to join up with or hide from the local warlord and his private army.  If you study the history of places like Somalia, you will find that one of two things is true: they have either failed to ever establish a coherent system for resolving political questions which the citizens generally agreed upon, or, they once had such a system in place, but they have lost it, perhaps due to foreign conquest, or, more often, due to internal strife.  Internal strife is what happens when some political partisans decide to become political Lance Armstrongs, seeking to win at all costs, believing that the ends justify the means, and all that really matters is the acquisition and exercise of raw political power for oneself and one’s tribe, through extrapolitical means if necessary, and the rules be damned.

CLIVEN BUNDY, SONIA SOTOMAYOR, AND THE CLAIM THAT WHAT A PERSON BELIEVES POLITICALLY IS A POLITICAL RIGHT

A couple of political Lance Armstrongs have been in the news of late: Cliven Bundy, and Sonia Sotomayor. Their behavior, if it came to be widely emulated or admired, would do to America what Lance Armstrong did to the Tour de France, taking a widely respected sport and turning it into the WWF, or taking a widely respected country and turning it into Somalia.  At first glance, Cliven and Sonia may not seem to have much in common. They are on opposite sides of both the horizontal political spectrum and the vertical political power structure in America. One is a right-wing white male cattle rancher who holds no political office but has (unfortunately) become (to some) a Conservative folk hero, whose cause was initially championed by one of the more prominent talking heads on Fox News. The other is a Latin-American female who sits as a Justice on the highest Court in the land, enjoying an appointment to that Court made by the most liberal President our nation has ever had.

What could these two possibly have in common?  Quite a lot as it turns out.  Yes. They've both made ill-considered statements which their critics construed as racist, Mr. Bundy having pondered whether “the Negro” was better off under the horrors of slavery than under welfare subsidies, and Ms. Sotomayor having suggested that her ethnicity and gender will make her a better jurist than those who do not share those characteristics with her.  But that's ultimately a cheap-shot comparison (based on the "gotcha" political correctness faux outrage politics that currently so cheapens our national discourse), which doesn't really get us to the issue at hand.  More relevant, they both have a fascinating talent for the subjective use of language, misconstruing words to mean, not what those words have traditionally and objectively been understood to mean, but to mean whatever the speaker wants them to mean. Hence, Mr. Bundy, in discussing the merits of his cause, recasts traditional legal concepts in startling new ways, including concepts such as “mine” (what I believe should be mine) "ownership” (a squatter’s trespassing and holdover possession), and “rights” (what I want).  For her part, Sotomayor can use her linguistic legerdemain to spin, in 50 pages of convoluted prose, an Alice-in-Wonderland fable rewriting MLK’s dream of an America where our children are judged by the content of their character and not the color of their skin, into a nightmare where we are all of us, now and forever, to be judged by nothing else but the color of our skins in perpetual perpetuity.

It is the second of these two similarities that is closest to the relevant point, but that point goes deeper still. 
The deepest similarity between Sonia and Cliven is that they are both perfect examples of unprincipled political Lance Armstrongs.  They both want to win more than they want to win in a legitimate way.  In pursuit of their own favored causes, neither is capable of an intellectually honest response to any counterarguments.  They both believe that the ends justify the means, might makes right, and that their own personal policy preferences are not just correct, as a matter of their own personal opinion, but create legal rights, just because they say so. The level of support they both enjoy should be deeply unsettling to anyone who believes in Constitutional government, because it suggests the prevalence of a deeply and widely held belief in America that the Constitution can be treated as an etch-a-sketch, and any parts of it that we don’t like can be magically wished away.  

I happen to be sympathetic to Cliven Bundy’s plight.  I believe that he, and other ranchers, have seen their ability to acquire permits for grazing on Federal land unfairly restricted by policies which I think are stupid and onerous.  But lots of people have livelihoods that are dependent to some extent on what the Federal Government is doing (vendors to U.S. Military bases facing closure, businesses renting property from the government or near National Parks), and when the risks of that arrangement don’t work out, they don’t get to go to war over these unfortunate outcomes.  It is a wholly unremarkable proposition that your landowner can, upon your lease's expiration, offer you a new lease on less favorable terms, or no lease at all.  A tenant who refuses to sign a new lease on terms which are not good enough for that tenant cannot reasonably suppose that he may thereafter, and without consequence, pretend that nothing has happened, refuse to sign that new lease, but stay in possession anyway, cease paying rent, claim to have "fired" his landlord, cease recognizing his landlord's existence, ignore court orders for his removal, vow in sworn testimony to do whatever it takes to physically obstruct his removal, and then feign outrage and surprise if, eventually, armed men come to stop his trespass. This is true even if your landlord happens to be the Federal Government which so many so deeply despise.  The ability to graze your cattle on public land is, ultimately, a privilege, and not a right, similar to a concession the county might alot to a favored few to open retail stores in the limited space available for such in a county airport.  There is no "right" to a renewal of such a concession, especially if you choose not to sign the terms of a new lease that is offered.

CLIVEN BUNDY'S ETCH A SKETCH VERSION OF THE CONSTITUTION

Cliven Bundy has been photographed with a copy of the Constitution in his shirt pocket.  His followers erected a large banner quoting the opening lines of the Constitution: “We the people” and many of them wear U.S. flags on their t-shirts.  These are strange props for the supporters of a man who has repeatedly violated orders of U.S. District Courts established by Article III of the Constitution, stood down executive branch agents acting under authority of Article II of the Constitution, and declined to believe that any laws passed by the Congress under Article I of the Constitution with which he disagrees are applicable to him.  This is a man who says he does not recognize the U.S. Government as even existing, and has acted on that belief now for 20 years.  If you don’t believe in Article I, or Article II, or Article III of the U.S. Constitution, or even in the existence of the U.S. Government created by that Constitution, what part of the Constitution do you actually believe in?  Just “We the people” and then skip to the First and Second Amendments?   Cliven Bundy wants one thing: to win. And if he can’t win under the rules, then he’ll win by ignoring the rules and by armed resistance instead.  He and his supporters are dangerous because they do not understand the price that will be paid by such a victory.  What happens when someone else starts grazing their cattle on Cliven Bundy’s converted allotments and he wants to kick them off?  What happens if two of Cliven’s militia men get into a brawl with each other?  Having refuted the authority of the Courts and the recognized agents of the law to resolve disputes of this nature, and having flouted the rule of law, where will Cliven and his friends turn?  To the rule of Cliven?  Cliven Bundy's arguments are based in the fringe and extremist views of the "sovereign citizens" movement, the ideology of which has been repudiated by one of the highest-ranking leaders in Mr. Bundy's church, and should not be countenanced by anyone who wants America to avoid becoming Somalia.

http://www.forbes.com/fdc/welcome_mjx.shtml

http://www.ldsinfobase.net/liberty/DHO_citizenship.html

(Let me digress to field briefly a commonly heard refrain: But, the founders broke the law too!  And where would we be without them?  And what about MLK and Rosa Parks?!?  Here's the deal: the founders broke the law because they discovered they had no political rights to change the law.  They realized they were not Englishmen, but Americans living under subjugation to a foreign power.  Taxation without representation. The lack of representation was what gave them the moral right to object with arms to the taxation, since they had no ability to object in the voting booth.  Cliven Bundy may not like Nevada's Senators, but he has as much of a right to vote for them as anyone.  As soon as our founders established representative self-government, they were quick to suppress, militarily, those who believed they could foment secession and rebellion against that government through extra-political means, away from the voting booth, no matter how sympathetic the rebels' grievances may have been.  (See, Washington and Hamilton's response to Shay's Rebellion and the Whiskey Rebellion.)  And a good thing too. Washington's support for the military suppression of Shay's Rebellion, and his personal involvement, as commander in chief, on the field leading the troops which put down the Whiskey Rebellion, is what kept this Country's revolution from turning into what the French Revolution turned into: "a pile of headless corpses with a dictator on top" (Margaret Thatcher).  Cliven Bundy is no Washington.  Indeed, Washington would have known exactly what to do with Cliven Bundy and his little band of so-called militia, and he would have led the charge.  As for MLK and Rosa Parks, the laws they opposed were immoral by any objective standard, including on the basis of Thomistic natural law theory relied upon by MLK, and they were willing to call attention to that fact by paying the price for their civil disobedience, and being arrested to draw attention to unjust laws, in peaceful and expressly nonviolent resistance. Cliven Bundy's supporters point their guns at federal agents and use fringe and historically inaccurate non-Constitutional and non-Thomistic "sovereignty" ideology to support their cause.  MLK and Rosa Parks would not be amused by the comparison.)

One of my first cases as a lawyer involved representing the owner of a bulldozer which had been damaged while in the possession of the lessee.  The damage happened like this: there were two rock and sand and gravel mining companies occupying adjacent properties.  One of the two had in its possession a piece of mining equipment leased to it by a third party. When they stopped paying the lease payments, the owner transferred the lease to their neighbor, but didn’t bother to transfer the actual piece of equipment.  He left the recovery and repossession to the new lessee, which went to its neighbor’s property to seize the object and, pretty soon, people were climbing into bulldozers and using them as armored tanks, going to battle with each other, ramming into one another and tipping over pieces of heavy equipment (my client’s bulldozer was one of the many damaged in the melee).  The battle finally ended when someone got shot.  That’s what happens when people forget we have a court system to resolve these issues peacefully.

SONIA SOTOMAYOR'S ETCH A SKETCH VERSION OF THE CONSTITUTION

But in order for the citizenry to trust the courts, the courts need to remember the limits of their own authority and power.  Their decisions have to be based on logic and reason and an at least arguably proper application of the facts to the law.  If our judges act instead like referees who have been paid off before the game, repeatedly making decisions which are obviously designed to reach a pre-desired political end, even if doing so requires leaps of logic that a 5th grader could see through, they will find themselves so disrespected as an arbiter of our legal disputes that no one will want to utilize them for that function.  They will find that we have all become Cliven Bundy, refusing to recognize the authority of tribunals that are interested only in power, not in principle.  Judges who are guilty of this misuse of their power deserve to have us question their authority.  "The judge who forgot the admonition in Proverbs, 'Do not favor the rich, neither favor the poor, but do Justice,' who set aside the laws, or who 'interpreted' them in a way he considered 'more fair' was, for all his good intentions, robbing the populace of an actual possession (the predictability of the legal codes). He was graciously giving away something which was not his."  David Mamet, The Secret Knowledge, On the Dismantling of American Culture (Sentinel 2011) at p. 151.

That’s what makes Sonia Sotomayor’s dissenting opinion in the recent Schuette case so discouraging, and the support she has garnered in certain pockets of the left so similar to the support Cliven Bundy has received among certain people on the right.

The “equal protection” clause of the U.S. Constitution means what it says: the government can’t discriminate against you (or prefer you) because of the color of your skin, or due to some other immutable characteristic, or on the basis of characteristics (your religion) that are protected elsewhere in the Constitution. Nevertheless, public institutions have done just that, passing laws giving preferential treatment to minority owned businesses bidding for public works contracts, and allowing discriminatory preferences to minority applicants for public universities.  These laws have been upheld by the U.S. Supreme Court under various theories limiting the application of or creating exceptions to the equal protection clause.  I happen to disagree with affirmative action,  (i) on principle, such that I disagree with the cases which have upheld it as Constitutional, (ii) based on its lack of efficacy (read Chapter 3 of Malcolm Gladwell’s book, David and Goliath, if you want to understand why we would have far more minority doctors and lawyers and scientists in America today if it weren’t for affirmative action admissions policies at our universities) and (iii) due to the fraud it encourages (let me know how many “MBE’s” and “WBE’s” you've worked closely with that you haven't eventually learned to be a front diverting money to some white guy).  Nevertheless, I understand that both the constitutionality and the efficacy of affirmative action is an issue on which reasonable minds can disagree, so long as the argument is being played out under the correct rules.

The subject of this blog post isn’t whether I agree or disagree with the underlying political policy preferences of Mr. Bundy and Ms. Sotomayor, but, rather, how I feel about both of their equally disreputable methods. While I disagree with a lot of past U.S. Supreme Court jurisprudence on the affirmative action question, I have to credit most of those decisions as having at least been honest about the question before them: “May a government violate the equal protection clause of the U.S. Constitution in order to remedy the effects of past discrimination, or in order to advance some other governmental interest –diversity or some such excuse– which warrants granting the government an exception to the equal protection clause, and if so, under what circumstances?” Whatever you think about how the Court has ruled on cases raising that issue, those rulings can't be seen as activist in nature.  They have generally upheld what the government had previously decided it wanted to do. They did not judicially impose a requirement of racial discrimination, but upheld such a policy that some governmental entity had adopted.

The question in the Schuette case was different, and much more simple.  Faced with a voter referendum in which the citizens of the State of Michigan decided that the time had come to end race-based admissions standards to public universities, the question became: “May the government of a State, or its people, uphold the equal protection clause and decide not to seek an exception to the Constitutional rule?”  Well, duh.  Any idiot can answer that question.  Of course the government doesn't HAVE TO engage in racial preferences and discrimination.  But Sonia Sotomayor is not just any idiot.  And her response to this question has been to say “No.”  You, Mr. Governmental entity or public institution, may NOT abide by the Constitution.  You are REQUIRED to violate it.  You are REQUIRED to read it the way I read it, as saying just the opposite of what it actually says.  Affirmative action policies (I am not making this up, her dissent indicated that she really wanted the court to rule this way) are not just acceptable despite the plain language of the equal protection clause, they are mandated by that language!   (No, really, I’m not kidding, she thinks we would buy this, that we’re just that stupid.  She really, really, and for truly does.) Sonia Sotomayor believes so much in affirmative action that she will not just allow you to have such policies, she will require you to do so.  It's like some one announcing that marijuana use won't just be legal in your State, it will be mandatory. What is more, if your State has the unmitigated gall and temerity to disagree with her, she believes she has the right to impose her personal policy preference upon you.  The Supreme Court has done this before of course, and gotten away with it far too often by declaring Constitutional rights to exist in the Constitution’s so-called "penumbras" and "emanations" which appear no where in its text.  But Sonia Sotomayor takes this judicial arrogance further than has ever heretofore been seen.  She is not simply finding rights in the Constitution which don’t actually appear therein, she is taking rights which are there, in black and white, in the text, namely, the right to be treated equally under the law, and transforming them into their opposites, in order to protect her own chosen policies and preferred politics, and advance the cause of her own fellow liberal tribesmen, all in violation of the principles of democracy, and the principles of common sense, and the principle of reading plain English to mean what it says, and what it was intended to say.  If she was a cow grazing on the land Cliven Bundy claims to own, she could not be having less coherent thoughts.

Nevertheless, all of the usual government-by-judicial-oligarchy suspects lined up to praise the "courage" of Sotomayor's dissent, each of them playing the usual power politics and each of them, with willful blindness, intentionally ignoring the true nature of her argument.  The constitutionality of affirmative action is not what was at issue in Schuette, the constitutionality of democracy is what was at issue in Schuette.  May the people of Michigan democratically amend their Constitution to require what the U.S. Constitution already requires: equal treatment by the government of the governed regardless of race? Or may the U.S. Supreme Court impose upon them a requirement to do otherwise?  Anyone who calls Sotomayor's dissent courageous is an unprincipled political Lance Armstrong, a person who believes it is more important for his or her personal policy preferences to "win" than it is for our system of self-government to "win" by being recognized.

The role of a judge in our society is similar to the role of a referee during a football game.  They are not to be partisan players, but to ensure our legal and political disputes are fought in accordance with the pre-established rules.  For Supreme Court Justices applying the U.S. Constitution, that means they are to apply the Constitution, not amend it from the bench.  A system for democratic amendment already exists, thank you very much.  Just as we should have nothing but scorn and contempt for a referee who we learn has money on the game and has been making biased play calls, Sonia Sotomayor likewise deserves our scorn and contempt for having assumed that her role is not to adjudicate, but to play for one of the teams.  I may be wrong about the merits of affirmative action, and Sonia Sotomayor may be right.  But in that case, she should have gotten out her SBC Stamp and called the voter referendum to which she objected "stupid but constitutional."  Instead, she lends credence to the Cliven Bundys of the world, and others like them, who can't distinguish between a political preference and a constitutional right.  If Sonia Sotomayor, sitting on the bench, can't draw this distinction, why should an Nevada rancher with no legal education, training or experience be able to do so?

The biggest issue any constitutionally governed society faces is how to ensure that the constitution is complied with.  Judicial review is the system which we have developed in America to deal with this problem. But that system comes with a huge risk: the temptation of the judiciary to falsely equate and conflate their own personal policy preferences and their own political views with what the Constitution actually says, and thereby to unmoor us from Constitutional governance and tether us instead to governance by unrestrained judicial oligarchy. Those members of the judiciary who give in to this temptation have corrupted our system and violated their oaths of office.   Again, they have "robb[ed] the populace of an actual possession (the predictability of the [Constitution]" thereby "giving away something" which was not theirs to give.  David Mamet, The Secret Knowledge, On the Dismantling of American Culture (Sentinel 2011) at p. 151.

THE VICIOUS CYCLE

Cliven Bundy and Sonia Sotomayor are both dangerous for the same reason: because they are both anti-Constitution.  Cliven feels he can ignore the existence of the government established by the Constitution, as well as its Courts, and executive branch officers and legislative branch legislation.  Sonia feels she can ignore the plain text of that Constitution and personally rewrite it to say the opposite of what it clearly says.  Both are unprincipled win-at-all costs partisans who believe that political questions can only have one proper answer: the answer that allows them to win, and recognizes their own power to get their own way no matter what, and if they don’t, to throw a spoiled child's temper tantrum. Sotomayor’s dissent in the Schuette case is the mirror image of Cliven Bundy’s stand in choosing not to recognize the existence of the government: both positions ignore the plain text and meaning of the Constitution.  Sonia's dissent does some other things that resemble Cliven too.  Just as Cliven refuses to believe that the State of Nevada is not the ultimate arbiter of his rights on Federal land, Sonia ignores the principles of Federalism where they do actually apply, pursuant to which the U.S. Government is a government of limited and delegated and enumerated powers and the States are political entities of general jurisdiction.  She turns a State question of a State’s admissions policies at State Universities into a question of Federal concern, which it is not.  And her dissent answers that question by borrowing Cliven Bundy’s Etch-A-Sketch version of the Constitution, so Sotomayor, like Bundy, can be provided with a Constitution which she can pretend says what she wants it to say, instead of what it actually does say.

One of the best defenses of the rule of law ever written may be found in this exchange from Robert Bolt's play about Sir Thomas More:

"Roper: So now you'd give the Devil benefit of law!

More: Yes. What would you do? Cut a great road through the law to get after the Devil?

Roper: I'd cut down every law in England to do that!

More: Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country's planted thick with laws from coast to coast– man's laws, not God's– and if you cut them down—and you're just the man to do it—do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake."

Robert Bolt, A Man for all Seasons

Substitute "the Federal Government" or "Republicans who want to democratically end affirmative action" or your own personal bogeyman in place of "the Devil" and hopefully you'll get the point.

It's a point which eludes both Sonia and Cliven.  And it is not the only thing they don't understand.  Their extrapolitical power plays create a vicious cycle, each feeding on the other and strengthening those who they most oppose.  Sonia's insistence that the Constitution can be read as mandating that which it expressly forbids is so utterly preposterous that, the more frequently it is accepted by the majority of her fellow Justices, the more it deprives the Court of any moral right or claim to be treated with legitimacy.  It would make the vast majority of Americans want to become Cliven Bundy, each of us refusing to recognize the authority of a tribunal which would require us to live under the rules handed down by such absurd and ridiculous jurists.  I won't discuss here the pros and cons of judicial review, but given the judicial veto power over democracy inherent in that doctrine, and its obvious potential threat to self-government, that kind of public sentiment against an overly arrogant Supreme Court is the kind of thing that can lead to war, if the people feel their right to live in a democracy has been unreasonably withheld from them. Has led to war in fact. Abraham Lincoln became a little bit of a Cliven Bundy in his disregard for the Dred Scott decision, which strengthened Northern resolve to carry out the Civil War.  (Sometimes the backlash is less violent. Roe v. Wade arguably led to the election of Ronald Reagan, and won the Cold War. But I doubt Sonia would see those events positively, in the way I do, and so she might want to take them as a cautionary tale.)   Similarly, Sotomayor's inability to differentiate between her own personal political preferences and the mandates of the Constitution further fractures a system which requires its citizens to make distinctions between rights and privileges, politically desirable policies and human or constitutional rights. If someone in her position can't do it, how should the rest of us be able to do so?

Cliven Bundy's actions, similarly, strengthen the very Federal Government which he opposes. In promising to do whatever it takes to prevent the federal government from carrying out federal court orders on land owned by the federal government, Cliven only encouraged the heavily armed response which his supporters felt was so overwrought.  But the more his non-supporters learned about the facts of the case, the more they supported the militarized federal response. Go read the comment sections to some of the liberal anti-Bundy stories on the internet. There are people calling for the U.S. Government to use drone strikes against Bundy. Whose to blame for those kinds of sentiments?  In large part, Bundy himself is.

If this is the way politics are going to be played in the future (and the support which Cliven and Sonia have garnered from many who ought to know better suggests this may be so), on the basis of unprincipled assertions of raw political power, which ignore the rule of law and discard the text and plain meaning of the Constitution, then America’s experiment in ordered liberty and self-government will soon be doomed. Fortunately, not all conservatives sided with Cliven, and fortunately a majority of the Court rejected Sonia’s “reasoning” including even one of the liberal justices.  But the support both of these unprincipled political  might-makes-right power players received at their respective ends of the political spectrum does not bode well for America's future.

Welcome to Somalia?