Author: Gabriel S. Sanchez

March 3, 2016 Law, Politics

Posner on Trump

Eric Posner, a law professor at the University of Chicago, has posted a fascinating reflection on whether the Constitution and American political institutions are strong enough to constrain (potential) President Donald Trump, assuming he chooses to behave like a dictator. Here’s an excerpt:

Let’s consider one of Trump’s proposals: to strengthen libel law so that he can punish those who criticize him. Could he do this? He cannot do it by executive order, and he probably cannot do it even if he persuades Congress to pass a law. First Amendment doctrine is clear: a court would strike down the sort of libel law that Trump advocates (or appears to advocate).

But there are ways that Trump could maneuver around this barrier. If he can appoint flunkies to head the Department of Justice and the FBI (Chris Christie, maybe?), they can order agents to spy on a political opponent and bring prosecutions. All that is needed is a reasonable suspicion of law violations, and there are so many laws that any prominent person, particularly journalists and opposition politicians, might violate even if inadvertently—campaign finance laws, tax laws, business licensing laws, and secrecy laws come to mind, depending on the person’s activities—that an excuse for audit, inspection, or surveillance can be ginned up. Judges can interfere at various steps along the way; whether they do will depend on whether there are plausible reasons to think that the person has broken a law (think of Hillary Clinton, for example). While nothing may come of the investigation, the risk of such harassment, if pursued vigorously enough, may deter opposition to Trump at the margin.

To be fair, I think Posner may be overplaying his hand a bit by suggesting so strongly that Trump will indeed choose to behave like a dictator should he assume office. Moreover, Posner’s suggestion, found elsewhere in his post, that people flock to Trump because they “yearn for a strongman who will protect them” is too condescending to take seriously. Still, it’s not out of the question that Trump will follow his predecessors (particularly George W. Bush and Barack Obama) in expanding the centralized powers of the Presidency. That shouldn’t surprise Posner one bit, particularly since he, along with Harvard professor Adrian Vermeule, announced the death of the Madisonian system of checks-and-balances in their 2010 book The Executive Unbound.

February 26, 2016 Eastern Catholicism, Eastern Orthodox Church, Liturgy, Roman Catholic Church

Leithart Looks East

I am not sure what inspired Peter J. Leithart to take an interest in Catholic liturgical reform, but over at First Things he has an post up on it entitled “Liturgical Orientalism.” For the most part, Leithart leans on an earlier academic presentation, “Eastern Presuppositions and Western Liturgical Reform,” by Fr. Robert Taft, S.J. For those familiar with Taft’s previous work, much of what he says (and what Leithart summarizes) is old news: “everyone” agreed that liturgical reform was needed at Vatican II; Latin liturgists took a shine (perhaps too much of a shine) to Eastern liturgy; the post-Vatican II reforms are a mixed bag (at least as far as the Liturgiae Horarum is concerned); and so forth. Unfortunately, Leithart doesn’t have much to add to the conversation, preferring instead to defer to Taft whose conclusions are, at points, contestable.

There can be little doubt now that Latin liturgical reformers “looked East” for inspiration (or perhaps just ex post facto justification) during the tumultuous decades of the 1950s and 60s, though subsequent scholarship has poured cold water on the idea that all of the reforms undertaken were truly “Eastern” and/or “ancient.” And while neither Taft nor Leithart make mention of it, some of the Latin liturgical reforms undertaken during the last century actually had the effect of driving contemporary Roman Rite praxis further away from widespread Eastern praxis as exemplified by the Byzantine Rite. For instance, the Latin reform of Holy Week, which ushered out the possibility of anticipating services like Tenebrae and the Easter Vigil, stands in contrast Eastern Christians anticipating the services (e.g., Holy Friday Matins on Thursday evening, Holy Saturday Vigil Liturgy in the morning, etc.). Other, more noticeable, reforms, such as the three-year lectionary, priests commonly serving Mass versus populum, “Extraordinary Ministers,” and such find no legitimate basis in the Christian East.

February 24, 2016 Law

Something on Scalia

I have been torn for the last week on whether or not to post something on the late Supreme Court Justice Antonin Scalia. After all, there is already a flood of commentary out there (pro and con), including numerous Catholic journalists and bloggers weighing-in on the matter. Amidst all of the heartfelt praises and damn demonizations has come some soberminded analysis as well, such as Eric Posner’s eyebrow-raising (albeit incomplete) analysis of Scalia’s legal influence. That doesn’t start to measure Scalia’s far more potent political and jurisprudential influence, however. Several generations of lawyers, judges, and law professors have been influenced by both Scalia’s originalism when it comes to constitutional interpretation and textualism with regard to statutes. At the political level, American conservatives have long looked to Scalia as their champion on the Court, wryly picking apart the opinions of his fellow liberal justices while attempting to fashion a legal basis upon which to roll back “living constitutionalism,” if not now, then at some point in the (distant?) future. And even if Scalia’s influence peters out over the next generation, there can be little doubt that his writings from the bench — particularly his dissents — will be marveled over for centuries for their rhetorical genius.

For what it’s worth, I have never been very high on either Scalia or originalism. In my first foray into legal-academic writing (which I am not inclined to defend too strongly these days), I found myself siding with Harry Jaffa’s “Straussian” critique of originalism as a historicist jurisprudence unfit for a vibrant and virtuous democracy. Over time, however, I became less convinced of Jaffa’s account of how the Constitution should be interpreted and started to appreciate the consequentialist defenses of originalism as a means of limiting the courts’ capacity for running roughshod over classical federalism. Still, there is no denying that originalism, as a judicial philosophy, is riddled with difficulties, not the least of which being its abhorrence toward the natural-law tradition. Why that doesn’t appear to bother more (American) Catholics is something of a mystery, but I digress.

No one expects the upcoming political battle over Scalia’s replacement on the Court to be either pretty or edifying. Some are hoping the appointment can be delayed until next year when either Hillary Clinton or Donald Trump take the Oath of Office. Either way, it is doubtful that Scalia’s successor will carry either the gravitas or talent he did to the bench regardless of their ideological persuasion. Besides, the arrival of a single conservative justice to the Court will do next-to-nothing to undo the social and moral damage which has already been inflicted on the nation. Catholics, particularly conservative Catholics, need to learn that the Supreme Court will not save us, nor for that matter will the liberal democracy so many desperately cling to as the surest means of securing our freedom.

February 24, 2016 Politics, World

Lilla on France’s Decline

Last year I took note of “Mark Lilla’s Tragic Trilogy on France” which ran in the New York Review of Books. Lilla now returns with the first of a two-part series on France’s socio-political decline in the wake of both the Charlie Hebdo and Paris attacks. Here is an excerpt from “France: Is There a Way Out?“:

Economic stagnation, political stalemate, rising right-wing populism—this has been France’s condition for a decade or more. So has nothing changed since the Charlie Hebdo killings? Yes it has, and not simply because of the Bataclan massacre. Since 2012 France has suffered a steady series of Islamist terrorist attacks, some dramatic, some less so, that have changed the political psychology of the country. Intellectuals and politicians have been arguing about the causes of le malaise français for decades, calling on the French to change their policies and thinking, on the assumption that their destiny was in their hands. That assumption no longer holds. The globalization of economic activity, including the American financial crisis and the transfer of decision-making to the opaque institutions of the European Union, has been eroding the sense of national self-determination for some time. And now the refugee crisis and international jihadist networks are eroding confidence that the state, which the French expect to be strong, can protect its citizens.

Though there were no major successful terrorist attacks on French soil between January and November 2015, there were enough small or unsuccessful ones in the news to keep the public on edge. In February, just weeks after the Charlie murders, three soldiers defending a Jewish center in Nice were stabbed by a Muslim man, and in November a jihadist network in Saint-Denis and Lyon was discovered and dismantled. In June another Muslim man whose name was in a police terrorist database decapitated his employer at a delivery company near Lyon, and before trying to blow up the building planted the man’s head on the building’s gate next to two banners, one referring to ISIS and the other with the Muslim shahada written on it (“There is no god but Allah. Muhammad is Allah’s messenger”). He then took some photos.

In August a young Moroccan living in Spain, who was also in a European police database, boarded a high-speed train from Amsterdam to Paris with a Kalashnikov and a Lugar pistol; he wounded five people before his guns jammed and he was wrestled down by two vacationing American soldiers. In October and November French police foiled what would have been two major attacks against naval installations in Toulon and Orléans by French Muslims with Syrian connections. And in December police investigating a recent female convert found in her apartment the hollowed-out mold of a pregnant woman’s belly, presumably intended to hide explosives. The French government now has a policy of publicizing its antiterrorism operations, which keeps the public alert but can also leave it with the jitters. In September the minister of the interior announced that over 1,800 French citizens had been identified as belonging to jihadist networks, triple the number recorded in January 2014.

The second, yet-published, article promises to focus more on France’s political future and the prospects of the National Front taking control of the country. And if people think the French experience has little to say to those living in the United States, think again. America, like France, is experiencing a surge in right-wing populism, only of a less principled and far stupider variety.

February 23, 2016 Church, Roman Catholic Church

Richard Williamson Back At It

Bishop Richard Williamson, the infamous former member of the Society of St. Pius X (SSPX) and leader of the so-called “Resistance,” is planning to consecrate a third bishop for his “movement” next month. From Catholic World News:

Bishop Williamson told followers that on March 19, he will ordain Father Thomas Aquinas, the prior of a traditionalist monastery in Brazil, as a bishop. In 2015, on the same date, he presided at the episcopal ordination of Father Jean-Michel Faure, also in Brazil. Bishop Williamson said that new bishops are needed to sustain “the resistance.”

. . . .

Under Church law the new ordinations will be regarded as valid but illicit. Canon law stipulates that anyone involved in the ordination of a bishop without approval from the Holy See incurs automatic excommunication.

At this point Williamson is still technically excommunicated for his arguably illicit consecration of a second “Resistance” bishop in March 2015, so what does he have to lose? Although I can only admit to following the activities of the “Resistance” from a distance, it doesn’t appear the movement has gained much steam since Williamson was ejected from the SSPX in October 2012 for defying the Society’s Superior General, Bishop Bernard Fellay. This doesn’t mean the movement is on the verge of dying out, however. The addition of another bishop to its ranks could speed-up the number of ordinations the “Resistance” performs in the coming years, not to mention making the sacrament of Confirmation more readily available to “Resistance” lay adherents with children. It stands to reason that there are a number of individuals and families who attend Society chapels but would otherwise depart for “Resistance” centers if they were more readily available. Moreover, some continue to suspect that if/when the SSPX gains full canonical regularization, a portion of the Society’s more “hardcore” clerics will take a walk.

February 22, 2016 Church

Contraception in the Congo

A great deal is being made of a certain papal plane interview in which the Holy Father referenced a decades-old story that Pope Paul VI permitted nuns working in the Congo to use contraception due to the extremely high risk of rape. (A similar tale, which Pope Francis did not cite, involves Pope John Paul II giving the same permission to nuns who were ministering in Bosnia in the 1990s.) This has prompted Catholics to refer to the Paul VI permission story as an “urban legend” or, if you’re Fr. John Zuhlsdorf (Fr. Z), an outright lie.

I would of course encourage readers to examine Fr. Z’s post and the anonymous source he quotes at length to “prove” that both the Paul VI and John Paul II stories are fabrications. Then I would encourage readers to consider the following three points:

  • First, no definitive evidence has been offered by either “side” regarding the veracity (or lack thereof) of either story, though one might argue that those who support either the Paul VI or John Paul II stories carry the burden of proof here. With that noted . . .
  • Second, it is extremely unlikely that either story — if true — would ever receive official or even unofficial confirmation from the Vatican, particularly during the reign of Paul VI, the pope who authored Humanae Vitae. Confirmed knowledge of the permission (if granted) would have had a domino effect in the Catholic Church, leading to even more widespread dissent from the Church’s teaching on contraception than we see today.
  • And third, confirmed or not, who but Pope Francis would be in a better position to know one way or the other if one or several of his predecessors had granted permission for nuns facing a high risk of rape? Many want to assume the Holy Father is either misinformed or, worse, intentionally spreading an urban legend (or lie) to bolster his own (private?) view that contraception may be permissible under certain circumstances, such as the threat of the Zika virus.

My point in mentioning this is simply to caution Catholics from jumping on one bandwagon or the other with regard to either of the Paul VI or John Paul II stories (or both). Granted, the veracity (or, again, lack thereof) of either story neither adds nor detracts directly from the reigning Pontiff’s position (whatever that happens to be exactly). However, given what we have seen transpire in the Catholic Church over the past 50+ years, it is certainly not beyond the pale to wonder if either Paul VI or John Paul II would give such controversial permission to nuns and what that might mean for the future of the Church’s public condemnation of contraception which, I might add, may have little to do with the doctrinal truth of the matter going forward.

February 22, 2016 Eastern Catholicism, Eastern Orthodox Church, Roman Catholic Church

A Clarification Concerning Russian Orthodoxy

Russian Orthodoxy, the brilliant religious tradition of Russia which is now a prominent feature of diaspora Eastern Christianity, neither rises nor falls with the politics of the contemporary Russian state or its Patriarchal church. I am compelled to mention this because certain murmurers have implied — or outright stated — that I am anti-Russian, anti-Orthodox, anti-Russian Orthodox, etc. due to my support of the Ukrainian Greek Catholic Church (UGCC) and my low view of the recent meeting between Pope Francis and Patriarch Kirill of Moscow. Nothing could be further from the truth. My appreciation for Russian Orthodoxy runs deep, and I continue to venerate her great saints and martyrs just as I find myself nourished intellectually by many of her theologians, old and new. However, truth compels me to be honest about the present state of the Moscow Patriarchate and its illicit “Russian World” ideology. In time these problems will pass just as new ones arise, not just within the realm of the Russian Orthodox Church, but throughout all of Christendom. This is true of the UGCC as well, for it, too, is comprised of fallible, sinful men who have, at times, placed nationalist impulses and ethnic pride above Christian charity when it comes to their estranged Orthodox brethren.

I agree wholeheartedly with Fr. Robert Taft that it is pointless to bicker about which side in the Orthodox/Catholic divide has the cleanest (or dirtiest) hands. Historical injustices should be brought to light and repented of, just as ongoing wrongdoings must be confronted openly and honestly. Does that mean “choosing sides”? Sometimes, though I am hesitant to think of the sorrowful conflict between Catholics and Orthodox as a zero-sum game which must inevitably have a single clear winner. Victory will be achieved through unity, not one side vanquishing the other once and for all.

February 21, 2016 Integralism

One Paragraph Before Sunday Liturgy

A thought: How far is the average American Catholic willing to go to sacrifice the principles of the faith in exchange for some form — even a grotesque form — of socio-political relevance? That is to say, at what point does this Catholic decide that St. Thomas Aquinas and numerous other theologians of the Church were wrong to assert that if one loses a part of the Faith, they lose it all? For today the Catholic Faith, like much of anything in this world of moving parts and endless preference fulfillment, is not only “negotiable,” but malleable. This piece is outdated (or inconvenient), and so it can be cast aside. Another piece provides existential comfort, so it can stay and yet another works as a soapbox upon which to stand in the midst of the so-called “culture wars.” This is the reality of Christian living today; it is the reality of all living. Those who lack faith of any sort, whose horizon expands no further than to the Apple Store, cannot be blamed entirely for living lives which are subject to serious (or a-serious) revision at a moment’s notice. Fads change; tastes change; people change, and no one wants to be left clinging to an outmoded posture or cultural form unless clinging to some outmoded posture or cultural form is indeed what is most current at the time. Life becomes — to lift from Leo Strauss — little more than the joyless pursuit of joy; everything terminates in entertainment. Should not a Catholic find this gross spectacle of waste nauseating? One Catholic did. Writing nearly nine decades ago in his seminal work The Concept of the Political, Carl Schmitt saw that the apotheosis of liberalism is entertainment — a life without seriousness or grandeur or even much of a point. But today’s American Catholic wants to be a good liberal, meaning a good consumer who carries around a few moralizing positions in their side pocket (e.g., abortion, birth control, death penalty, etc.) and a wallet full of bank cards in the back. “Give me religious liberty or, absent that, give me a house in the suburbs, two cars, and a fantastic vacation package to Disney World.” Where have gone the gifts of counsel, understanding, and fortitude? They have been exchanged for a “lifestyle choice.” Господи Помилуй