Archive | political philosophy RSS feed for this section

The decline of the West is due to a disease, a spiritual disease (Christopher Dawson)

20 Mar

On the Great Historian (and prophet?) Christopher Dawson (excerpt):

The Roman Empire and its Hellenistic civilization had become separated from any “living religious basis” and, although Augustus attempted to restore that basis, he was unsuccessful. In spite of the high material and intellectual culture, “the dominant civilization became hateful in the eyes of the subject Oriental world,” and indeed its own greatest minds were alienated from it, a “price that every civilization has to pay when it loses its religious foundations, and is contented with a purely material   success.”[47]

Western civilization now faces a grave spiritual crisis at the very time when it has, by conquest and technology and trade tended to unify the entire world.[48] If our culture is to survive it must obtain some religious roots, either by conversion back to Christianity or by finding some new spiritual principle. Dawson was no fatalist; he believed either alternative possible if men would seriously make the attempt. Naturally, he thought the more desirable would be to return to Christianity. Thus the challenge is issued to Christians:

The new Babylon is threatened by an even more catastrophic and suicidal end than any of the world empires of the past. Thus we find ourselves back in the same situation as that which the Christians encountered during the decline of the ancient world. Everything depends on whether the Christians of the new age are equal to their mission—whether they are able to communicate their hope to a world in which man finds himself alone and helpless before the monstrous forces which have been created by man to serve his own ends but which have now escaped from his control and threaten to destroy him.[49]

Dawson proposed a first step towards solution of the problem of secularism. He believed that higher education should be of most concern to the Christian. “It is in this field that the secularist danger is most formidable…[for] if (Christianity] loses the right to teach it can no longer exist.” Moreover, education is also the weak point of secularism: “The only part of Leviathan that is vulnerable is its brain.”[50] Dawson devoted one of his last books to the proposal to institute, in private, Catholic colleges, a program for the study of Christian culture.[51] It is a proposal that strikes one as hopelessly inadequate, at least in the United States, in view of the increasing problems private colleges have in merely surviving. But those difficulties do indeed point to the immediacy of the issue for our churches; their right to teach is being rapidly eroded away.

Original and full Article

The line of demarcation in all of politics

5 Mar

“The great line of demarcation in modern politics, Eric Voegelin used to point out, is not a division between liberals on one side and totalitarians on the other. No, on one side of that line are all those men and women who fancy that the temporal order is the only order, and that material needs are their only needs, and that they may do as they like with the human patrimony. On the other side of that line are all those people who recognize an enduring moral order in the universe, a constant human nature, and high duties toward the order spiritual and the order temporal.” Russell Kirk

On the love of country. The limits of partriotism

4 Mar

From Bruce Frohen:

Patriotism, or its lack, has been in the news again, as happens every now and then in our hotly contested political culture. President Obama’s persistent references to what he deems to be the history of oppression in our nation, and in western civilization more generally, have led some to question his “patriotism,” by which is meant his love of country. Such arguments may or may not be useful as a means of carrying on political debate. But they certainly throw light on varying conceptions of our duties toward our country and nation. I mention country and nation separately to highlight the particular object of my concern, namely, the question of just what it is to which we owe our “patriotic” loyalty. Is it a geographical unit? A cultural unity or people? Or is it a specific political regime that we think has a rightful call on our love? And what form, and extent, should this love take?

Americans in particular have a reputation for placing love of “country” high on their list of self-described virtues. Yet our conception of that country often is described in specifically political terms. The Pledge of Allegiance, written in the late nineteenth century by the Christian socialist minister Francis Bellamy and adopted by the US Congress in 1942, aims to reinforce loyalty “to the republic for which” the flag “stands.” A significant strain in American ideology connects the greatness of the United States to political principles, usually equality and democracy, putatively found in the Declaration of Independence and reinvigorated by various political figures (especially Abraham Lincoln) and political movements (like the civil rights movement).

The claims for this political conception of patriotism are strong in the United States, to which so many people came in search of the freedom to lead lives of faith and virtue disallowed in their homelands, and in which people from a variety of ethnic backgrounds have been joined by their pursuit of economic well-being in the context of ordered liberty. But critics of this formulation may point to the darker side of an ideology that posits a particular set of principles as the definition of a nation and the thing to which we owe “allegiance.” Various ideologies, from communism to socialism to fascism, have demanded the loyalties of the people, who have been formed into various youth, neighborhood, and other “patriotic” associations to further the cause.

Dissenting persons and communities have been stripped of their legal and customary rights and even exterminated on the grounds of “disloyalty” to a ruling political dogma—again, usually some form of equality. Many Americans would deny the danger of any such ideology in our country, particularly given the attachment of our political religion to democratic forms. But dissenters from contemporary “progressive” ideologies continue to be shunned and have their careers ruined. It also is worthwhile noting the involvement of the United States in a variety of “wars of liberation” and “nation-building” adventures that have resulted in tens of thousands of deaths and have their roots in the vision of patriotism as a kind of political loyalty transcending practical questions of human decency and affection.

The conviction that Americans by nature are committed to specific political principles generally is presented as a necessary bulwark against various forms of “blood and iron” patriotism, like that of Otto von Bismark. It was Bismark who consolidated Germany into a Prussian-dominated nation state in part through a kulturkampf waged against the Catholic Church and culture. Racism, ethnic violence, and various forms of antidemocratic politics are said to arise from too close an identification of the nation with a specific culture or people. And it clearly is the case that such forms of violence, even genocide, have resulted in part from the capturing of political power by one group that chooses to identify its racial or ethnic makeup as deserving and requiring supremacy over others identified as disloyal by their very being.

The choice, then, seems a stark one; one not likely to encourage attachment to any form of patriotism. In the first case we see a kind of political religion, in which ideological commitments trump all other attachments and may even justify immoral actions for the greater good they promise. Religion itself, in the sense of a way of life binding a community to a particular conception of the good and how it can be pursued with virtue, becomes a tool of the state. Lost, then, are the natural checks on power provided by religious institutions and standards of conduct meant to restrain human appetite and pride in the name of faith, hope, and love.

In the second case, we see a civil religion, in which the people is identified as a political as well as cultural highest good, to which all other goods must be subordinated. Many proponents of civil religion deny the dangers of such identification by ignoring or denying its cultural component. Robert Bellah, for example, identifies “civil” religion as a form of quasi-religious attachment to American democratic principles. He deems this form of public religion largely benign if kept subordinate to his chosen political principles (equality), thereby confusing civil with political religion. But true “civil” religion, or attachment to “the best of” a people, is merely an invitation to turn ethnic, geographical, or other attachments into a kind of higher calling, akin to that of politics, and Bellah’s “civil” religion is merely a political replacement for its civil counterpart.

What then, of the patriot? If both civil and political religion result, in effect, in a religious attachment to a regime that justifies moral enormities in the name of ideology (including an ideology of ethnic identity) is there no virtue in the love of country? Is the soldier either a fool or a cad, willing to kill for inhumane reasons?

Of course not. Patriotism merely means love of one’s own. It is an attachment to one’s land and people, as well as the form of life (including the political form of life) they lead. This form of love is virtuous to the extent that it is well ordered. One naturally loves one’s own—the people with whom one has grown up, the form of life in which one is raised, the political and economic customs one shares with one’s fellows. The desire to improve one’s own is natural enough, though increasingly promoted by contemporary ideologies. That desire generally and properly is rooted in the customs, principles, and assumptions already present in one’s culture.

Thus the political structures of medieval Europe were constantly under pressure from the demands of the Church both as an institution and as a set of moral, political, and legal principles formulated through canon law, codes of honor (the chivalric code was a very real, active motivator of human conduct for many), and political debate. The principles were internal in the sense that they were generated by forces within the culture. At the same time, they transcended merely political and merely ethnic loyalties and considerations. One’s patriotism, or love of country, was properly limited and even conditioned by love of God, of Church, and of other associations within the political, ethnic, and geographical horizon. Particularly at a time before “country” had been consolidated and simplified into the territorial nation state, love of one’s own pulled one in many directions, subjected one to many sets of duties, and allowed one to pursue the split and conflicting loyalties natural to a good life in a manner capable of spurring one to virtue and decency as great deeds for what might or might not be truly great causes.

The danger of patriotism is not its love, or even the willingness it provides to people to sacrifice for their country. The danger comes about when the nation state, the people, or some other specific unit within a society claims sovereignty over all others, demanding loyalty to itself above all. For such loyalty belongs to God alone and is properly put into effect only through the balancing of moral duties to those around him, in all the rich variety of circumstances and associations provided by a decent life.

Original source

Bruce P. Frohnen is Professor of Law at The Ohio Northern University Pettit College of Law.

Perhaps we should stop listening to secularists in our fight against ISIS

26 Feb

From Dr. Paul Miller in The Federalist (excerpt):

In truth, the Islamic State’s (ISIS’s) religious nature is banal because it is so obviously true. The Islamic State is difficult to comprehend only for secularists who believe religion is an aberration in the modern world. It isn’t: they are. Ignoring the religious nature of jihadists is the simple arrogance of those who dismiss as “false consciousness” the sincere devotion of the faithful. I read Graeme’s piece and felt like Captain Renault being shocked—shocked!—to find gambling going on in Rick’s Cafe. You’re only shocked if you’ve been deluding yourself for a decade.

But the religious nature of the Islamic State—and of jihadist terrorism generally—feeds into some disturbing chatter I’ve heard among conservative friends and colleagues. People rarely say it publicly, but in private conversations and emails among friends, I’ve heard more mutterings about the problems with “Islam,” about how the Islamic State proves Islam is not a “religion of peace.” I heard someone wonder when we were going to recognize the threat from “them” and start tracking Muslims in America to protect ourselves from their plots.

We are right to dismiss the White House’s pablum as vacuous nonsense. But rejecting one idea does not mean we have to affirm its opposite. It is false that jihadism has nothing to do with Islam; but that does not mean that Islam is nothing but jihadism. The tiresome, politically-correct cliche about the vast majority of Muslims not being terrorists….is true.

…jihadist religious claims are certainly relevant. Success in war depends on knowing your enemy. Social scientists who dismiss the religious claims of jihadists, treating religion as epiphenomenal to some other “real” cause, betray a materialist, secularist bias and do not help us understand our enemy. The secularist view—that jihadism is the product of frustrated rational actors lashing out at their disempowerment in corrupt, poor, repressive societies left behind by globalizing modernity—is true but incomplete, the shallow understanding of secular modernity unable to come to grips with the enduring power of religious identities.

Religion powerfully intermixes with politics in all societies in the world, including the United States—whether it is the religion of Christianity or the religion of Enlightenment secularism.

Why everyone should have at least a love – hate relationship with the sexual revolution

19 Feb

College students are consistently taught that the sexual revolution victimless even in human history. A costless benefit to everyone. Of course, the truth is more complicated than, even quite the opposite of, that. Rod Dreher explains in an excellent piece from the NYT:

“Viewed from one angle, the sexual revolution looks obviously egalitarian. It’s about extending to everyone the liberties — the freedom to be promiscuous, to pursue sexual fulfillment without guilt — that were once available only to privileged cisgendered heterosexual males. It’s about ushering in a society where everyone can freely love and take pleasure in anyone and anything they want.

But viewed from another angle, that same revolution looks more like a permission slip for the strong and privileged to prey upon the weak and easily exploited. This is the sexual revolution of Hugh Hefner and Larry Flynt and Joe Francis and roughly 98 percent of the online pornography consumed by young men. It’s the revolution that’s been better for fraternity brothers than their female guests, better for the rich than the poor, better for the beautiful than the plain, better for liberated adults than fatherless children … and so on down a long, depressing list. At times, as the French writer Pascal-Emmanuel Gobry recently suggested, this side of sexual revolution looks more like “sexual reaction,” a step way back toward a libertinism more like that of pre-Christian Rome — anti-egalitarian and hierarchical, privileging men over women, adults over children, the upper class over the lower orders.”

Full article

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.

Original source

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

11 Feb


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):

%d bloggers like this: