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Deos anyone care about the rule of law anymore? Seems we’d be happy with our favorite law even if it came by dictatorial decree

18 Feb

It is my conviction, and I think that of most of the framers, that our Republic will not fail due to bad legislation.  It will fail due to bad procedure.  That is, a government that gives us what we want need not be a republic.  Dictators use that strategy all the time.  I asked my class a simple question.  If a republic recognized fewer rights than you want, but a dictator recognized all the rights you want, which would you rather have?  Amazingly, most students were hesitant to answer, even deeply torn.  When executives legislate, when courts enforce, when Congress abdicates, when state authority is usurped, we have bad procedure, which is worse than bad policy.  A dictator who grants you all the rights you want can also take them away, perhaps on a whim.  But a constitutional republic arrives at recognizing rights in slow methodical and yet nearly irrevocable procedures.  Why?  Because it is bound by the principle of “the rule of law,” which asserts that it is better that we pass no policy, or less than ideal policy, than that we enact policy by illegitimate, inappropriate, non-jurisdictional, extra-constitutional means.  The saying is true: We are nation of laws, not of men, and we forget that to our own peril.

One law professor speaks of the demise of the rule of law in the Alabama same-sex marriage case.

As I have heard Judge Hand say time after time after time, this is a nation of laws and not of men, and the rule of law is prime in our system of jurisprudence. That is what makes stare decisis such an important factor in how any judge goes about the business of being a judge. I think that as long as judges follow the rule of law and do not become a law unto themselves, they will make a fine judge, and that is what I intend to do should I be so fortunate as to be confirmed.

Testimony of Judge Callie S. Granade before the Senate Judiciary Committee prior to her confirmation.

The “least dangerous” branch of the federal government and the Alabama judiciary are at war. Ordinarily, judicial federalism is a subject of interest to a few legal scholars, political philosophers, and historians. Now it is on the mind of average citizens as they are observing the dangerous battle between the federal courts and the Alabama judiciary. Every citizen should mourn the fact that this battle has wounded, perhaps fatally, the rule of law in Alabama.

Just over two weeks ago, Judge Callie S. Granade, a federal district judge in Mobile, struck down Alabama’s marriage laws as unconstitutional, holding that Alabama had no rational basis for preventing the plaintiffs (two women) from marrying. The Eleventh Circuit and the Supreme Court both denied a stay (over the dissent of Justice Thomas and Justice Scalia). On Monday, a self-imposed stay expired and same-sex couples began appearing in probate offices to file applications for marriage licenses.

Chief Justice Roy Moore of the Alabama Supreme Court responded to the federal injunction by publicly advising Governor Robert Bentley that the judge’s order was not binding in Alabama. Chief Justice Moore issued an order, in his capacity as the chief administrative officer of the Alabama courts, prohibiting probate judges from issuing licenses in contravention of Alabama’s marriage laws. Chief Justice Moore asserts that an inferior federal court ruling is persuasive authority, not binding authority, in any state. In effect, Chief Justice Moore has ordered all state probate judges to disregard the federal court’s injunction and adhere to Alabama’s constitution and laws and has threatened sanctions for those judges who disregard his order.

So what should a probate judge do? What are a probate judge’s legal obligations?

Alabama’s Attorney General, Luther Strange, has instructed probate judges toconsult a lawyer regarding their obligations. Some probate judges are complying with Chief Justice Moore’s order, and motions for contempt proceedings in the federal court have already been filed. Meanwhile, other Alabama probate judges are ignoring Chief Justice Moore’s order and issuing licenses to same-sex couples. Some are making up their own application forms as they go.

Supporters of “marriage equality” are celebrating the federal ruling while wielding the sword of federal supremacy. In their unfolding civil rights narrative, Chief Justice Moore is rather predictably playing the part of the southern obstructionist. There he stands in the courthouse door. Judge Granade’s decision to enter her injunction (just two months before the questions before her are argued in the Supreme Court) was a declaration of war. Given Chief Justice Moore’s prior battles with the federal courts, it is unsurprising that he dared to defend Alabama’s constitutional authority.

Unfortunately, all sides appear not to notice that as they battle they are killing the very thing that they are fighting over. The rule of law is suffering injuries in this tired old battle between individual rights and states’ constitutional authority.

The Wounded Rule of Law

The wounds to the rule of law are, perhaps, easiest to perceive with respect to the strategy selected by Chief Justice Moore. Many, including Professor Ronald J. Krotoszynski of the University of Alabama School of Law, have criticized his constitutional reasoning. Although Moore’s arguments are supported by a considerable constitutional history (for example, state supreme courts ignored the mandate of the United States supreme court dozens of times prior to the Civil War), his defiance of federal judicial power in a state known for such defiance is the wrong strategy.

His statements create the appearance that he denies the supremacy of federal law. Appealing to the Tenth Amendment without acknowledging the Supremacy Clause (and developments occurring since the Civil War amendments) should trouble anyone concerned about the stable rule of constitutional law. Indeed, Justice Thomas and Justice Scalia noted, in their dissent from the denial of a stay in the Alabama marriage case, the obligation of the states to comply with a federal court’s order. Chief Justice Moore’s position is exposing the state’s judiciary and the rule of law to considerable scrutiny.

But it must be observed that Justice Moore did not declare war. The first shot was fired from the federal courthouse in Mobile. The constitutional crisis now unfolding in Alabama is a direct and foreseeable result of Judge Granade’s orders. And a closer examination of her orders reveals that it is the federal court, not Chief Justice Moore, creating the constitutional crisis now undermining the rule of law in Alabama.

A Cavalier Attitude toward States and Their Laws

Striking down a state’s laws is, according to numerous authorities, an act of last resort for a federal judge. The constitutional tensions revealed in Alabama this week are expected costs of federal judicial review of state law. The framers understood this. In fact, fears of federal judicial supremacy threatened the ratification of the Constitution. Madison famously crafted a compromise regarding the very existence of lower federal courts in the states. Lower federal courts would not be constitutionally required and, as a result of the compromise, Article III power was vested only in “one supreme court.”

Congress did create the lower federal courts in the Judiciary Act of 1789. But the jurisdiction of such courts has always been limited. In addition to these jurisdictional limitations, many justiciability and abstention doctrines exist to protect the authority and independence of the states in our federal republic. As the Supreme Court explained in Younger v. Harris, our nation’s federalism requires “a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways.”

One must wonder, then, why Judge Granade determined it lawful and necessary to take the extraordinary step of striking down Alabama’s marriage laws just months before the Supreme Court hears a nearly identical case. Her judgment unnecessarily disregards deference owed to the states. Her intervention is even more confusing in light of the fact that Justice Kennedy, writing for the Supreme Court two terms ago in Windsor, declared that the federal government had no interest in regulating the family and thereby struck down DOMA on grounds of federalism.

Indeed, Judge Juan Pérez-Giménez, a Democratic appointee by Jimmy Carter to the United States District Court of Puerto Rico, made just this point when he upheld Puerto Rico’s marriage law: “It takes inexplicable contortions of the mind or perhaps even willful ignorance—this Court does not venture an answer here—to interpret Windsor’s endorsement of the state control of marriage as eliminating the state control of marriage.”

Judge Granade’s order disregards many compelling legal reasons to withhold judgment. As Justice Thomas and Justice Scalia correctly noted in their dissent from the denial of a stay in the case, Judge Granade’s order striking down Alabama’s law and the refusal to stay the decision reflect an “increasingly cavalier attitude toward the states” and their laws.

Furthermore, Judge Granade’s order effectively overrules the Supreme Court’s decision in Baker v. Nelson, which held that a challenge to Minnesota’s marriage laws by two men seeking a marriage license must be dismissed “for want of a substantial federal question.” Like other federal district judges, Judge Granade is bound by this Supreme Court precedent. In her confirmation testimony before the Senate Judiciary Committee, Judge Granade explained that “the principle ofstare decisis should be prime” for every federal judge. Alabama argued that Bakerprecluded review. Nevertheless, Judge Granade’s order sets aside the Supreme Court’s opinion in Baker. In light of these offenses to federalism and stare decisis,Chief Justice Moore’s response is not really that surprising.

The Role of Law in Society

To understand how these actions have wounded the rule of law, one must consider the role of law in any society. Law is a rule or standard. Law is used by a judge to resolve disputes and determine the rights, duties, privileges, and liabilities of the parties before the court. It is fundamental to the rule of law that a judge is not a lawmaker. Judges do not make up the rules as they go. Instead, judges use rules of law impartially to guide judicial decision-making.

Judge Granade, in her Senate confirmation testimony, explained this fundamental concept as follows:

I am a firm believer in our three-branched system of democracy and the way it was designed to work by the framers of the Constitution. For it to function properly, each branch should stick to the function assigned to it. This means that the federal judiciary should stick to interpreting and applying the law—and stay away, to the best of its ability, from “making” law or “enforcing” law. Courts are not designed to run executive programs and should avoid oversight responsibilities if at all possible.

In other words, Judge Granade rightly noted that the separation of the judicial function (identifying and applying law) from the legislative and executive powers is fundamental to the rule of law. In order to ensure the impartiality of judges and the legitimacy of their judgments, then, it is critical that judges are guided by the rule of law. As Alexander Hamilton explained in Federalist No. 78,“To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them.”

According to Judge Granade’s opinion, her order striking down Alabama’s marriage laws is required by the due process and equal protection clauses of the Fourteenth Amendment. What rules or precedents led her to this judgment? As noted above, her order contradicts the jurisdictional holding of Supreme Court precedent. She noted that the Eleventh Circuit “had not yet determined the issue” and offered no prudential support therefrom. Rather than deferring to this lack of authority and entering judgment on behalf of the party entitled to judgment as a matter of precedential authority (and thereby allowing the non-prevailing party to appeal to the Supreme Court to argue that Baker ought to be overturned), Judge Granade struck down Alabama’s law.

A Cascade of Questions

Read literally, Judge Granade’s order strikes down Alabama’s marriage laws in their entirety. Her order declares that Alabama’s constitutional amendment defining marriage and its definition of marriage in the state code are unconstitutional and enjoins “enforcing those laws.” But perhaps because federal courts are not well-equipped to “run executive programs,” Judge Granade’s order fails to provide any rule or standard to determine what the law of marriage now is in Alabama.

What is marriage law in Alabama now? What groups of people are entitled to receive a license? Are all of the marriages that have been contracted in the state of Alabama now unconstitutional? If not, then which ones are still valid? Must Alabama officials stop enforcing all of marriage’s legal protections for the rights of children, such as the presumption of paternity and presumptions of biological parental custody? After all, those incidents cannot apply equally to same-sex couples as to married couples.

What “rule of law” answers these fundamental questions? Judge Granade has now set herself up to be the chief probate officer in the state of Alabama. She has not defined marriage, and her failure to do so leaves state actors, especially probate judges, without a definition of the institution for which they are issuing state licenses. Worse, she has provided no legal standards—not even a limiting principle—to guide her administration of Alabama family law, which she has now taken upon herself. She will be rewriting the family laws of Alabama, piecemeal and arbitrarily, from her bench. Rather than conducting legislative hearings regarding the familial rights and duties related to the definition of marriage, Judge Granade will be conducting contempt proceedings in which she will decide on a case-by-case basis which actions of Alabama officials violate the Constitution and which do not.

If the rule of law is not already dead in Alabama, then it is seriously wounded indeed.

Robert McFarland is Vice Dean and Associate Professor of Law at Faulkner University’s Thomas Goode Jones School of Law.

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“Leviathan by proxy,” how the size/power of the federal government expands without expanding

11 Feb

bureaucrats

Professor John Dilulio explains how the federal government has expanded without expanding the size of its personnel.  That is, it has expanded its size and scope and power through proxies (non-profits, contractors, state/local agencies).  Doing this allows the supporters of centralization to mask the true extent of that centralization over time (the federal bureaucracy stays small but the number of federal proxies explode).  Here’s a podcast with Dilulio on that topic (based on his new book):

“The most important test of 2016 may be the Thomas Jefferson Primary”

6 Feb

Russell Moore on the centrality of religious liberty in the 2016 election for evangelicals:

the most important test of 2016 may be the Thomas Jefferson Primary —the race to see which candidates offer a clear, coherent vision of religious liberty when the very idea is contested in American politics.

Jefferson won over the Baptists and evangelicals without pretending to be one of them. After all, he was derided as an infidel by his critics. Jefferson and the Baptists came to religious liberty from two very different starting points. He based it on an Enlightenment understanding of natural rights. They based it on a gospel in which consciences must be free if they are to stand in judgment on the Last Day. The Founding-era evangelicals, such as fiery Virginia Baptist revivalist John Leland, didn’t care about motives, but about who would work to secure freedom. That’s a good model for the next election.

Read the whole column here

An atheist explains the different political theologies he sees in Christianity and Islam (does it explain violence and oppression?)

28 Jan

From Robert Tracinski in The Federalist:

The Charlie Hebdo massacre once again has politicians and the media dancing around the question of whether there might be something a little bit special about this one particular religion, Islam, that causes its adherents to go around killing people.

It is not considered acceptable in polite company to entertain this possibility. Instead, it is necessary to insist, as a New York Times article does, that “Islam is no more inherently violent than other religions.” This, mind you, was in an article on how Muslims in the Middle East are agonizing over the violent legacy of their religion.

It is obviously true that all major religions have had violent periods, or periods in which the religion has coexisted with violence. Even those mellow pacifist Buddhists. These days, especially the Buddhists, who are currently fomenting a pogrom against a Muslim minority in Burma.

But in today’s context, it’s absurd to equate Islam and Christianity. Pointing to the Spanish Inquisition tends to undermine the point rather than confirm it: if you have to look back three hundred years to find atrocities, it’s because there are so few of them today. The mass crimes committed under the name of Islam, by contrast, are fresh and openly boasted about.

As an atheist, I have no god in this fight, so to speak. I don’t think the differences between religions make one more valid than another. But as the Charlie Hedbo attack reminds us, there is a big practical difference between them. In fact, the best argument against the equivalence of Christianity and Islam is that no one acts even remotely as if this were true. We feel free to criticize and offend Christians without a second thought—thanks, guys, for being so cool about that—but antagonizing Muslims takes courage. More courage than a lot of secular types in the West can usually muster.

So it’s a matter of some practical urgency to figure out: what is the difference? What are its root causes?

As I see it, the main danger posed by any religion to its dissenters and unbelievers lies in the rejection of reason, which cuts off the possibility of discussion and debate, leaving coercion as an acceptable substitute. I’m with Voltaire on that one: “If we believe absurdities, we will commit atrocities.” But all religions are different and have different doctrines which are shaped over their history—and as we shall see, that includes different views on precisely such core issues as the role of reason and persuasion.

I should preface this by saying that I am no expert on theology, particularly Muslim theology. Yet there are a number of big, widely documented differences between Christianity and Islam that can be seen in the traditions established by their history and in the actual content of their religious doctrines.

The life of Christ versus the life of Mohammed.

Mohammed was a conqueror who gained worldly political power in his lifetime and used it to persecute opponents and impose his religion. He also fully enjoyed the worldly perks of being a tyrant, including multiple wives. Jesus, by contrast, was basically a pacifist whose whole purpose on earth was to allow himself to be tortured to death.

He even explicitly forbade his followers to use force to defend him. Here’s John, Chapter 18: “Then Simon Peter having a sword drew it, and smote the high priest’s servant, and cut off his right ear…. Then said Jesus unto Peter, Put up thy sword into the sheath: the cup which my Father hath given me, shall I not drink it?”

This does not imply that all Christians ought to be pacifists. But it certainly sets a tone for the religion. The life of the founder of a religion is held up to his followers as a model for how they should live their own lives. The life of Mohammed tells the Muslim that he should expect to rule, whereas the life of Christ tells the Christian he should expect to sacrifice and serve. Which leads us to a deeper doctrinal difference.

“What you do to the least of these, you do to me.”
In Matthew, Chapter 25, Christ tells his followers what will happen during the final judgment, when he separates the righteous from the wicked.

Then shall the King say unto them on his right hand, Come, ye blessed of my Father, inherit the kingdom prepared for you from the foundation of the world: For I was an hungred, and ye gave me meat: I was thirsty, and ye gave me drink: I was a stranger, and ye took me in: Naked, and ye clothed me: I was sick, and ye visited me: I was in prison, and ye came unto me.

Then shall the righteous answer him, saying, Lord, when saw we thee an hungred, and fed thee? or thirsty, and gave thee drink? When saw we thee a stranger, and took thee in? or naked, and clothed thee? Or when saw we thee sick, or in prison, and came unto thee?

And the King shall answer and say unto them, Verily I say unto you, Inasmuch as ye have done it unto one of the least of these my brethren, ye have done it unto me.
Similarly, there is an episode during the Last Supper when the apostles are squabbling about which of them is greatest. Christ intervenes and tells them that the greatest is he who serves others the most.

And he said unto them, The kings of the Gentiles exercise lordship over them; and they that exercise authority upon them are called benefactors. But ye shall not be so: but he that is greatest among you, let him be as the younger; and he that is chief, as he that doth serve.
This is a very profound idea that goes against the grain of most of human history. I’m a big fan of the Classical world, but the pagans still regarded it as normal, right, and natural that the physically strong set the terms for everyone else. Thucydides famously summed it up in the Melian Dialogue: “The strong do as they can and the weak suffer what they must.” Thucydides was clearly critical of that view, but the Classical world didn’t have a clear alternative. As far as I know, Christ was the first to insist that even the lowest, least significant person has value and that we will be judged by how we treat him.

The distinctive idea here is not a belief in self-sacrifice—Islam, with its emphasis on the glory of dying in battle, has that idea in abundance. Nor is it the idea of a duty to serve others—Communist regimes were built on the idea that the individual exists only to serve the collective. Instead, it is the idea that each individual has a supreme and sacred value. Even Ayn Rand declared this to be the idea from Christianity that most impressed her.

Islam has no corresponding idea. The news is constantly bringing us a story of some imam somewhere declaring it consistent with Islam for a man to beat his wife, and the rise of the Islamic State in Syria has provided us current examples of Islam sanctioning slavery, including the capture and systematic rape of sex slaves. This is a religion that is still very much in the “rights of the conqueror” mode, in which the strong do what they can and the weak suffer what they must.

Again, this goes back to the beginning. Consider the story, from one of the earliest Arab biographies of Mohammed, of Asma bint Marwan, an Arab poet in Medinah who spoke out against the rise of Mohammed. According to legend, he asked his followers, “Who will rid me of the daughter of Marwan?” (His version of Henry II’s “Will no one rid me of this meddlesome priest?”) One of them took it on himself to sneak into her house and murder her in her sleep. There are questions about the authenticity of the story, but the fact that it was widely believed and reported indicates the example Mohammed set.

To be sure, this brutal attitude is partly because of the backwardness of some of the quasi-feudal societies that are majority-Muslim, where divisions of tribe and caste still dominate. But then again, Islam hasn’t done much to elevate those societies, despite having more than a thousand years to do so.

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On Worldviews (and the myth of the “freethinker”)

22 Jan

From Dr. James Anderson:

On Worldviews

by

Abortion. Euthanasia. Pornography. Same-sex marriage. Transgender rights. Embryonic research. Genetic enhancement. Christians surveying the cultural landscape in the West have a clear sense that things are headed in a destructive direction. While most believers can easily identify the symptoms of decline, few feel competent to diagnose and address the root causes. There are many complex factors behind these developments, but one invaluable tool for better understanding and engaging with our culture is the concept of worldview. The sociological quakes and moral fissures we observe in our day are largely due to what we might call “cultural plate tectonics”: shifts in underlying worldviews and the collisions between them.

What is a worldview? As the word itself suggests, a worldview is an overall view of the world. It’s not a physical view of the world, but rather a philosophical view, an all-encompassing perspective on everything that exists and matters to us.

A person’s worldview represents his most fundamental beliefs and assumptions about the universe he inhabits. It reflects how he would answer all the “big questions” of human existence: fundamental questions about who and what we are, where we came from, why we’re here, where (if anywhere) we’re headed, the meaning and purpose of life, the nature of the afterlife, and what counts as a good life here and now. Few people think through these issues in any depth, and fewer still have firm answers to such questions, but a person’s worldview will at least incline him toward certain kinds of answers and away from others.

Worldviews shape and inform our experiences of the world around us. Like spectacles with colored lenses, they affect what we see and how we see it. Depending on the “color” of the lenses, some things may be seen more easily, or conversely, they may be de-emphasized or distorted—indeed, some things may not be seen at all.

Worldviews also largely determine people’s opinions on matters of ethics and politics. What a person thinks about abortion, euthanasia, same-sex relationships, environmental ethics, economic policy, public education, and so on will depend on his underlying worldview more than anything else.

As such, worldviews play a central and defining role in our lives. They shape what we believe and what we’re willing to believe, how we interpret our experiences, how we behave in response to those experiences, and how we relate to others. Our thoughts and our actions are conditioned by our worldviews.

Worldviews operate at both the individual level and the societal level. Rarely will two people have exactly the same worldview, but they may share the same basic type of worldview. Moreover, within any society, certain worldview types will be represented more prominently than others, and will therefore exert greater influence on the culture of that society. Western civilization since around the fourth century has been dominated by a Christian worldview, even though there have been individuals and groups who have challenged it. But in the last couple of centuries, for reasons ranging from the technological to the theological, the Christian worldview has lost its dominance, and competing worldviews have become far more prominent. These non-Christian worldviews include:

  • Naturalism: there is no God; humans are just highly evolved animals; the universe is a closed physical system.
  • Postmodernism: there are no objective truths and moral standards; “reality” is ultimately a human social construction.
  • Pantheism: God is the totality of reality; thus, we are all divine by nature.
  • Pluralism: the different world religions represent equally valid perspectives on the ultimate reality; there are many valid paths to salvation.
  • Islam: there is only one God, and He has no son; God has revealed His will for all people through His final prophet, Muhammad, and His eternal word, the Qur’an.
  • Moralistic therapeutic deism: God just wants us to be happy and nice to other people; He intervenes in our affairs only when we call on Him to help us out.

Each of these worldviews has profound implications for how people think about themselves, what behaviors they consider right or wrong, and how they orient their lives. It is therefore crucial that Christians be able to engage with unbelief at the worldview level. Christians need to understand not only what it means to have a biblical worldview, but also why they should hold fast to that worldview and apply it to all of life. They should be able to identify the major non-Christian worldviews that vie for dominance in our society, to understand where they fundamentally differ from the Christian worldview, and to make a well-reasoned case that the Christian worldview alone is true, good, and beautiful.

The challenge is greater than ever. But we shouldn’t be discouraged, because the opportunities and resources available to us are also greater now than they have ever been. In the last half-century or so there has been a remarkable renaissance in Christian philosophy and apologetics, much of which has focused on developing and defending a biblical worldview. Whatever God calls His people to do, He equips them to do (see Eph. 4:11-12; Heb. 13:20-21). The problem is not that the church is under-equipped, but that she has yet to make full use of what Christ has provided for her.

“I am not Charlie Hebdo” – David Brooks

9 Jan

From David Brooks:

The journalists at Charlie Hebdo are now rightly being celebrated as martyrs on behalf of freedom of expression, but let’s face it: If they had tried to publish their satirical newspaper on any American university campus over the last two decades it wouldn’t have lasted 30 seconds. Student and faculty groups would have accused them of hate speech. The administration would have cut financing and shut them down.

Public reaction to the attack in Paris has revealed that there are a lot of people who are quick to lionize those who offend the views of Islamist terrorists in France but who are a lot less tolerant toward those who offend their own views at home.

Americans may laud Charlie Hebdo for being brave enough to publish cartoons ridiculing the Prophet Muhammad, but, if Ayaan Hirsi Ali is invited to campus, there are often calls to deny her a podium.

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The Political Philosophy of John Calvin by James Bruce

30 Dec

From Dr. James Bruce:

John Calvin

What is Calvin’s relationship to the foundations of modern politics? One obvious answer is that Calvin doesn’t have one. On this view, modern political thought begins by rejecting revelation (Christian or otherwise) and embracing reason. Calvin doesn’t contribute anything, according to this position; on the contrary, if anything, Calvin is an obstacle to be overcome! So studying Calvin is, for the political philosopher, just a waste of time, or, to put it more gently, studying Calvin may be interesting for any number of reasons, but politics is not one of them. Others take the exact opposite approach. On this view, to know Calvin is to know modernity. What was planted as a Reformation sprouted as the Glorious Revolution and grew into the American Founding. The views run the gamut, from one extreme to the other, because there are also any number of mediating positions that say that Calvin’s theology plays a role, but by no means the only role, in the development of what we have come to call modern politics.

But it’s even more complicated, because people don’t just disagree about the relationship between Calvin’s theology and modern politics; they also disagree about the particulars of each. And, to put it mildly, the interpretive challenges are absolutely enormous. What, after all, is modernity? It is notoriously difficult to define. Take a handful of examples: Let’s say that a confidence in reason constitutes modernity. If so, then David Hume isn’t modern, which seems odd. Perhaps it’s our strict separation of church and state. If so, then Massachusetts, which had tax-supported churches, wasn’t modern until 1833. A confidence in the free market? Marx isn’t modern. A rejection of revealed religion? Then Roger Sherman and some of the other Founders weren’t modern. Atheism? Descartes wasn’t modern. Etc.

And, of course, interpreters of Calvin spend no small amount of time disagreeing with each other over Calvin’s views on almost everything. If one believed everything written about him, then Calvin was a Renaissance humanist and a Protestant scholastic; a nominalist and a realist; a voluntarist and an intellectualist; a theological systematizer and an antisystematic biblicist; a lover of liberty and a burner of heretics.

We must acknowledge, too, that we are not disinterested participants in these debates. If we are (for want of a better word) secularists, then we want Calvin’s contribution to be nonexistent or unnecessary. Calvin played either no role or his role was limited, saying in theological language what someone else said without it. If, by contrast, we are (for want of a better word) religious, then we may want a louder voice for religion in the public square. We may be predisposed to find in Calvin something unique and special that is relevant for us today. Even here, though, things get complicated: If we are Reformed, we may hope for some kind of endorsement of Reformed theology due to the attractiveness of the American Founding. If we are Roman Catholic, we may want to say that Calvin is distinctively modern and that’s why Calvin is awful.

With these kinds of interpretive problems before us, Ralph C. Hancock is to be congratulated simply for, as the English say, having a go at it in his book Calvin and the Foundations of Modern Politics, recently republished by St. Augustine’s Press. Taking Calvin and making him a political philosopher is like taking Isaac Newton and making him a theologian—it can be done, certainly, but it is a delicate surgery nonetheless.

To the question—what’s Calvin’s relationship to the foundations of modern politics?—Hancock takes a view somewhere between the two extremes. That seems to be the most reasonable approach, but Hancock pursues this middle road in an unexpected way. To see why Hancock’s approach is so unique, consider a more obvious way to relate Calvin to modern politics: First, one could say, Calvin espoused a particular view of modern politics; then that theologically drenched view lost the talk of God so prevalent in Calvin’s own thought, and, finally—voilà!—a secular, modern politics was born.

Now that’s not Hancock’s view. Instead, according to Hancock, Calvin has a theological motivation for his modern, more secular, political views. That’s what’s really interesting about Hancock’s interpretation of Calvin: According to Hancock, modern politics does not necessarily arise from a rejection of Calvin’s theology; instead, it is Calvin’s own theology that leads us to an antispeculative, genuinely modern approach to the world. To make his case, Hancock tries to show, in part one of the book, that Calvin focuses our attention away from otherworldly affairs in order to have a practical, but spiritual, concern for this life. In part two, Hancock offers further evidence for the claims in part one by connecting his interpretation of Calvin to broader theological themes in Calvin’s thought.

If I have understood him correctly, Hancock wants to say that Calvin’s practical political philosophy is about the same as a Machiavelli or a Hobbes, but with one crucial, and superior, feature. Calvin exclusively has an optimism or a hope for the modern enterprise. Calvinist optimism arises from the sovereignty of God and God’s superintending providence over everything, including human activity. Toward the end of Calvin and the Foundations of Modern Politics, Hancock writes that, if his interpretation of Calvin is correct, then we ought to be as sensitive to the Christian tradition in Machiavelli and Hobbes as we are sensitive to Enlightenment thought in the Puritans (186).

Hancock is at his best in his Calvin and the Foundations of Modern Politics when he tries to bring his one particular view of Calvin into conversation with twentieth-century political philosophers and historians of political philosophy. For example, Hancock argues, by taking Leo Strauss’s interpretation of modernity as a starting point, that Calvinism should be studied more carefully than it is in fact studied: “On Strauss’s own interpretation of the meaning of modernity, Calvinism appears to deserve more attention than it has generally received from students of political philosophy, a different kind of attention than that given it by historians of political thought . . .” (186). It’s a clever move.

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