For the record: Netanyahu’s visit

Congress, which disagrees with President Obama’s policy on Iran, has invited the Prime Minister of Israel, Benjamin Netanyahu, who also disagrees with Obama’s policy on Iran, to speak before a joint session. 1 Among other commentary, Michael Ramsey, whose 2001 article with Sai Prakash, The Executive Power over Foreign Affairs, gives him unimpeachable originalist credentials on this point, has concerns that Congress’ invitation is unconstitutional, exceeding its enumerated powers and intruding on the President’s general, residual authority over foreign affairs. 2 Adam White, another lawyer in FedSoc orbit of some repute (albeit less well-credentialed in this area than Ramsey), disagrees, acknowledging that Ramsey’s points have force, but perhaps less weight than Ramsey thinks. 3

So far as the constitutionality of the invitation, I am not persuaded by either position. Like David Bernstein, I am content to answer “maybe.” 4 I can leave that question unresolved here because I conclude that even if Ramsey is wrong that the invitation is unconstitutional, it is at least illicit and improper, for the reasons that Ramsey identified in his 2001 article, and that determination is outcome-determinative here. Foreign affairs are generally an executive responsibility, and it is improper for Congress to extend such an invitation over the President’s disagreement, even if it has the power to do so. 5 Like Reihan Salam, I admire Netanyahu and I don’t like Obama’s foreign policy, and so it pains me to say this, 6 but Obama is President, and as such, it is for him to make this kind of foreign-policy determination, even when I disagree with that determination. 

Netanyahu did nothing wrong by accepting the invitation, and Congress cannot now rescind that invitation without it being perceived as a slight, but it should not make such invitations in the future.

Notes:

  1. See, e.g., NYT slams Republicans for inviting Netanyahu to address Congress, Haaretz, Jan. 24, 2015, http://www.haaretz.com/news/diplomacy-defense/1.638740; Patricia Zengerle, Invitation to Netanyahu to address U.S. Congress: When bipartisan means partisan, Reuters, Jan. 23, 2015, http://www.reuters.com/article/2015/01/23/us-israel-usa-congress-idUSKBN0KW2H520150123 (all cited web resources as last visited Jan. 29, 2015.
  2. Ramsey, Is Netanyahu’s Address to Congress Unconstitutional?, The Originalism Blog, Jan. 25, 2015,
    http://originalismblog.typepad.com/the-originalism-blog/2015/01/is-netanyahus-address-to-congress-unconstitutionalmichael-ramsey.html; accord Peter Spiro, Is Boehner’s Netanyahu Invite Unconstitutional?, Opinio Juris, Jan. 22, 2015, http://opiniojuris.org/2015/01/22/boehners-netanyahu-invite-unconstitutional; see generally Prakash & Ramsey, Executive Power over Foreign Affairs, 111 Yale L.J. 231 (2001); American Ins. Assn. v. Garamendi, 539 U.S. 396 (2003).
  3. White, The Constitution Doesn’t Let President Close Congress’s Doors to Israel, Weekly Standard Blog, Jan. 26, 2015, http://www.weeklystandard.com/blogs/constitution-doesnt-let-president-close-congresss-doors-israel_824707.html.
  4. see Bernstein, Is Netanyahu’s address to Congress unconstitutional?, The Volokh Conspiracy, Jan. 25, 2015, http://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/01/25/is-netanyahus-address-to-congress-unconstitutional.
  5. Cf. Doe v. Bolton, 410 U.S. 179, 222 (1973) (White, J., dissenting).
  6. Cf. Salam, Netanyahu’s Visit and the Executive Power to Receive Foreign Leaders, The Corner, Jan. 28, 2015, http://www.nationalreview.com/corner/397396/netanyahus-visit-and-executive-power-receive-foreign-leaders-reihan-salam. When writing at SF, I often pointed out that the very best time to articulate and stand on a constitutional principle is when it cuts against one’s immediate interests and preferences to do so, because that is a vouchsafe that it is truly the principle that has dictated the outcome. When the Supreme Court took the Noel Canning case, for example, I was able to say that the President’s recess appointments were invalid without fear of being thought partisan, because I had a record of criticizing the Constitutionality of such recess appointments that dated back into the Bush Administration.

Francis v. the Zeitgeist

The murders of several French journalists by Islamic extremists earlier this month produced not only condemnation of the murders but an unambiguous and no-questions-asked solidarity with the journalists. Francis, the incumbent bishop of Rome, has taken fire for comments supportive of the minority position, which is no more ambiguous as to condemning the murders but which nevertheless declines to stand in no-questions-asked solidarity with the journalists. Having been severely critical of Francis on many issues, I feel obliged to say a few words that are not entirely adverse to his position on this one.

I.

On January 7, 2015, jihadist terrorists attacked the offices of a French periodical titled Charlie Hebdo, executing most of the editorial board and killing a maintenance worker in the building and two nearby police officers. 1 Charlie is described as “satirical,” although it seems more akin to South Park than to Private Eye, and the attack was motivated by Charlie‘s publication of various obscene cartoons of Muhammed, the founder of Islam, who is revered by Muslims as the definitive prophet of God. 2 The attitude of Islam (i.e. the neutral and objective content of the religion itself) toward depictions of Muhammed is unclear to me, but the prevailing view among Muslims (i.e.  the understanding and lived experience of adherents to the religion) regards depictions of Muhammed as blasphemous per se. 3 Either way, however, the particular images published by Charlie would seem blasphemous (or at least profoundly offensive)  to Muslims, whether or not any depiction would have been blasphemous per se. By way of analogy, Christians do not regard images of Jesus as blasphemous per se, 4 but they would certainly agree that images of Jesus can be blasphemous, and that, for example, Charlie‘s 2011 depiction of Jesus sodomizing God is blasphemous. 5 Notably, the cartoons at issue were so repugnant that even non-muslim contemporaneous commentary condemned them. 6 

Reaction to the murders crystallized in the slogan “je suis Charlie,” which seems to have expressed not only outrage at the murders, but identification and solidarity with Charlie. 7 Indeed, for a while, it seemed that one had to choose: You’re Charlie or you’re jaune. 8 Although more careful writers conceded at least that “it is possible to reject the content of those drawings and still stand firmly with the Charlie Hebdo staff,” 9 the majority sentiment and zeitgeist was unquestionably an identification with Charlie Hebdo: An embrace of its speech as our freedom of speech and a rejection of retribution against its speech as an attack on our speech which must be met in “us-versus-them,” “with-us-or-against-us” terms. The implication of je suis Charlie, then: One is either with Charlie or else one is apologizing for murder and excusing terrorists—a manufactured morton’s fork were there ever one.

Predictably, this produced a backlash. 10 Some found it wildly ironic that those who would normally be very happy to police speech were suddenly pretending to favor free speech. 11 And to be sure, some of it was undoubtedly self-serving. 12  In the main, however, those who were uncomfortable with the “je suis Charlie” slogan were motivated by one basic concern: Sometimes both sides of a controversy are wrong, and who said that we must choose between unqualified support for Charlie and supporting the murders? Charlie acted like dicks. Yes they had a right to act like dicks, and murdering them for being dicks is indefensible, but neither identifying with nor defeending dickish behavior is a proper response to the murders of dicks or a necessary predicate of faulting such. 13 The Dutch blogger Thomas Wells wrote, trenchantly:

Making use of the freedoms permitted by liberalism to denigrate the morality, sanity, or humanity of other people – including many of one’s fellow citizens – doesn’t make someone a defender of those rights but someone who finds it agreeable to say such things about that group of people. And frankly, if you want to say such things in such a way that those people will hear you, then you are an asshole not a hero. I share in the general horror that people who want to exercise their human right to be assholes to and about Muslims should be at special risk of extreme violence. Assholes deserve to be shunned, not murdered with cruel delight. But being murdered doesn’t make their behaviour any more reasonable. It doesn’t make them heroes to emulate … Let’s not turn lulz into something noble. Charlie Hebdo‘s purpose and business plan is provocation, not journalism … [andin ] the long term, … [assholish behavior] undermines the very goal that the freedom of the press was meant to achieve, and that the assholes themselves implicitly rely upon: society-wide, civil, informed and pluralistic conversation about the issues of the day. The press have a variety of special entitlements and rights because of their special role as underlabourers of democracy. Those news media companies that partly or largely refuse to take their moral responsibilities seriously undermine mutual civility between citizens and increase public cynicism of democratic ideals. We should not pretend that liberal democracies are served by such behaviour or that they would be diminished by its absence. 14

And from the left, Katherine Cross:

[B]y making untouchable martyrs out of the slain Charlie Hebdo writers and artists, and belittling the longstanding concerns many have had about the newspaper’s history of racism, we compound the tragedy and do further violence to free expression … It starts with the well-meaning “Je Suis Charlie” (I am Charlie) slogan that many lent their names to in a show of support and sympathy for the newspaper, its remaining staff, and those who grieve. I support the sentiment, the empathy, the compassion that the slogan represents at its best…. But the simple fact is, I am not Charlie. I couldn’t be. Rather, I’m the sort of person who’d only ever get to be an ugly, rude caricature in their pages — a trans woman, a Latina, Puerto Rican but in the same community of Latinos scapegoated for various and sundry evils in the US, much as Muslims are in France. I’d never be the one wielding the pen, merely the lewd, pornographic subject and nothing more. I’d be fit for only the consumption of a privileged community, their joke, an unwilling jester. No, je ne suis pas Charlie. 15

It was into this ferment that Francis chose to wade, telling reporters on January 15:

[Freedom of expression is a] fundamental human right, [but one that must be exercised] “without giving offense. It’s true, one cannot react violently, but if Dr. Gasbarri, a great friend, says a swear word against my mother, then he is going to get a punch. But it’s normal, it’s normal. One cannot provoke, one cannot insult other people’s faith, one cannot make fun of faith. 16

II.

I am not in the business of defending Francis, but, if I have correctly understood his point here, I am sympathetic to it. I don’t take him to be calling for legal limits on insulting speech, but rather to be saying that free speech should be used responsibly: One should not set out to deliberately and gratuitously provoke people. 17 He is, in other words, saying precisely what Bill Donohue said last week. 18 Because I think that “purposeful speech at which offense might conceivably be taken” is a distinct category from, and can (at least usually) be distinguished from “speech that is intended solely to provoke and offend,” I tend to agree.

Charlie Hebdo is not Paul Robert Cohen, and what Charlie said was not “Fuck the draft.” 19 Cohen chose strong, direct, shocking language to draw attention to and take a position on one of the defining moral and political issues of his time. 20 The Cohen court was able to say that “the State certainly lacks power to punish Cohen for the underlying content of the message [that] the inscription conveyed” because there was distinct content within in the form. 21 Here, however, Charlie’s “speech,” was worthless, little more than a gratuitous, juvenile insult. We aren’t talking Steve Bell, but graffiti on the Sixth-Form toilet walls—”Smith smells.” Even the New Yorker had to admit (doubtless uncomfortably) that we have been pressed into mounting our defense of free speech not from some great redoubt of journalistic integrity but rather at the trenchline of some “puerile doodles” that are “at odds with any standard of good taste.” 22 They should not have been drawn; they should not have been published. That’s Francis’ point.

But what about other speech that offends jihadis? When Dana Loesch interviewed Donohue last week, she noted that the jihadists don’t just take offense in cases such as this, but also in cases that we would recognize as legitimate satire, to say nothing of serious discussion: Jihadis killed Theo van Gogh (and still hope to kill Ayaan Hirsi Ali) over their film “Submission,” for example, which we might think provocative in form, but would certainly recognize as legitimate commentary in content. 23 Therefore, Loesch insisted, “offense” can’t be the criterion. You can’t say “don’t say things that offend Muslims” because the jihadis are offended by everything, and so the proffered rule is massively overinclusive and therefore contrary to basic liberties. Even if you think that you shouldn’t gratuitously offend people, Loesch seemed to say, surely you agree that it’s legitimate to criticize Islam, including by way of satire, and so, because and to the extent that the mere act of criticizing Islam gives offense, you can’t have it both ways.

Here is the problem: Loesch and the “je suis Charlie” model assume that there is no cognizable distinction between satire that may offend and gratuitous insult. That is error. They mistake the difficulty of situating any given example on one side of the line or the other for the possibility of drawing such a line. We might disagree over whether Spitting Image, whether in gross or at any particular moment, was gratuitously offensive or making a serious point through offensive speech, but we surely recognize that the line exists. We draw that distinction all the time in America. In their interview, Donohue noted, and Loesch conceded, that the word “nigger” would ordinarily be deemed too offensive to be aired, and a guest who used it would be censored. But when the context is Blazing Saddles, in which Cleavon Little threatens the crowd “hold it! The next man makes a move, the nigger gets it!” while holding himself at gunpoint, 24 or “hip hop,” a form of popular music in which exaggerated machismo doggerel is recited over exaggerated drum beats and sampled music, 25 no one bats an eyelash. And we are constantly told by our progressive brethren that we can and should differentiate between legitimate speech and its cousin “hate speech.” 26  Sometimes we’re pretty terrible at doing it, and perhaps we shouldn’t be doing it at all, 27 but we do it nevertheless, and everyone will agree that there are close calls and there are easy calls. Like Justice Stewart, we know it when we see it. 28

Think about Brandenburg v. Ohio. 29 Brandenburg warns that the First Amendment probably won’t protect free speech that intends to and probably will incite imminent lawless action. But the court nevertheless thought that kind of speech distinct from speech that merely ruminated in the abstract on the merits and morality of imminent lawless action. Easy for the court to say! Mr. Brandenberg’s indictment followed a speech at a Klan rally in which he told many armed klansmen how important it was to fight and bury the “niggers” and deport the jews; nine elite lawyers sitting four hundred miles away and a year later thought this abstract political speech rather than any imminent incitement to act on it, 30 but one must wonder whether an ordinary black (wo)man or a jew(ess) present at the speech would have felt perfectly safe attending Mr. Brandenburg’s academic lecture on the moral propriety of his or her being killed or deported. Nevertheless, we all understand the court’s distinction even while acknowledging that it can be tricky to apply. Sometimes we’re pretty terrible at applying it, and perhaps we shouldn’t be applying it at all, but we do it, and everyone will agree that there are easy cases where it’s obviously incitement or it’s obviously academic, and hard cases where it looks a lot like incitement but it could be academic. Even if we thought that Mr. Brandenburg’s conviction should have been sustained on the facts as were, imagine that he had instead been indicted under the same statute and theory for publishing a satirical cartoon in the Klan newsletter depicting a klansman patting down the dirt on a grave marked “Jim Crow”: Would we not then think differently? Again, Like Justice Stewart, we know it when we see it.

So “Fuck the draft” is protected speech, as Cohen teaches; “I’m going to fucking kill you” might well be a threat to which criminal consequences may attach; “I’m going to kill you, nigger” is not only a threat but also a hate crime, punishable by additional charges or enhanced penalties in many jurisdictions. 31 In the same way, “I have some concerns about the status of women raised in orthodox judaism / islam / Christianity” is speech; “we ought to call ourselves brights in distinction to the religious dims” is gratuitous insult disguised as charmless braggadocio. 32 A depiction of Pope Benedict holding up a condom in place of a host might be appropriate satire (that was one of Charlie‘s covers), but the afore-mentioned depiction of Jesus sodomizing God is nothing more than gratuitous offense. These are distinctions that we can generally recognize in concrete situations, even if we would be hard-pressed to frame a rule categorizing them abstractly and ex ante. In the same way, there may be cartoons of Muhammed (and other things that will offend jihadis) that we would account as okay, because they have a worthwhile and serious point, and we ought to defend their publication. But there are other cartoons that do nothing more than stick a thumb in the eye of a hated minority for the sheer gleeful joy of doing so and knowing that one won’t be prosecuted for it. And we can and should feel differently about the latter; as Lino Graglia has observed out, it is simply not true that if we today ban Hustler, we must and will necessarily tomorrow ban Hamlet. 33

All told, then, I think that Francis is urging little more than a social norm against hate speech. He disagrees with and would be dismayed by (as I do and am) the Charlie supporter who said, in a moment of ill-advised candor that “Americans don’t like to hurt people with cartoons—but you should hurt people!” 34 Really? That is the crass “I can do it and so I shall” attitude that St. John Paul II castigated in his famous 1981 message for the World Day of Peace:

[T]rue freedom is not advanced in the per missive society, which confuses freedom with licence to do anything whatever and which in the name of freedom proclaims a kind of general amorality. It is a caricature of freedom to claim that people are free to organize their lives with no reference to moral values, and to say that society does not have to ensure the protection and advancement of ethical values. Such an attitude is destructive of freedom and peace. 35

To be sure, Francis and I would disagree if he proposed that hate speech ought to have legal or disciplinary consequences. My objection to hate speech laws is that the term is vague and standardless, and the range of “easy” cases is pretty large, and the range of harder-but-nevertheless-claimed cases is enormous and extremely diverse. How can neutral rules of general application manage so broad a range of fact-patterns against so amorphous a standard? Law is a blunt instrument that deals best with clear rules, clean lines of demarcation, and fact-patterns that fit into straightforward templates. 36 There may be as many different plans for robbing a bank as there are bank buildings, but robbing a bank is a straightforward and encompassing template that legal rules can manage. “Every person who shall offend any person by hateful speech directed against the beliefs of the group to which that person belongs” isn’t. It isn’t even begging for abuse: It’s insusceptible of principled application. Think of Snyder v. Phelps: Was Westboro’s speech protected, as the majority concluded, or dickish hate-speech, as Justice Alito concluded in dissent? By what standard can law judge that sort of question? In the same way, how can law referee whether a cartoon of Muhammed is nothing but a gratuitously offensive image or whether it has some redeeming value? Well: It can’t, and for that reason it probably shouldn’t try.

But you and I can. And, again, that is Francis’ point, it seems to me. I don’t object to a social norm that looks askance at hate speech. It’s not a question of the state subjecting speech to legal limits but rather individuals subjecting speech to ethical considerations.

* * *

Reviewing a proposal to criminalize hate speech for the New York Review of Books, retired Justice John Paul Stevens concluded: “In the end, although the book does not persuade me that it would be wise to outlaw the entire category of hate speech …, [it] elegantly and convincingly advocates that our leaders should not only avoid the use of hate speech themselves, but also condemn its use by others … We should all do our best to preserve President Ford’s conception of America as a place where we can disagree without being disagreeable.” 37 I see Francis’ comments as doing little more than accepting this invitation. 

Notes:

  1. See generally Wikipedia, https://en.wikipedia.org/wiki/Charlie_Hebdo_shooting (all cited web resources as last visited Jan. 16, 2015, unless otherwise indicated).
  2. See, e.g., Anjem Choudary, People know the consequences: Opposing view, USA Today, Jan. 8, 2015, http://www.usatoday.com/story/opinion/2015/01/07/islam-allah-muslims-shariah-anjem-choudary-editorials-debates/21417461. Choudary is to be commended for his candor and USA Today for their willingness to publish it, for they have short-circuited the handwringing political correctness and and accusations of strawmen that might otherwise have hamstrung our ability to talk frankly about the causes of the attack.
  3. See Wikipedia, https://en.wikipedia.org/wiki/Depictions_of_Muhammad; cf. Caroline Alexander and Salma El Wardan, Prophet Image at U.S. Supreme Court Shows Taboos Aren’t Eternal, Bloomberg News, Jan. 26, 2014, http://www.bloomberg.com/news/2015-01-26/prophet-image-at-u-s-supreme-court-shows-taboos-aren-t-eternal.html (last visited Jan. 27, 2014).
  4. That question was resolved at the Second Council of Nicea in 787. See generally [Documents and Decrees of] The Seventh General Council (Mendham, trns. 1850).
  5. See Alice Robb, There Is No ‘Charlie Hebdo’ In America, The New Republic, Jan. 8, 2015, http://www.newrepublic.com/article/120717/charlie-hebdo-attacks-difference-between-american-and-french-satire
  6. See, e.g., Jerome Taylor, It’s Charlie Hebdo’s right to draw Muhammad, but they missed the opportunity to do something profound, The Independent, Jan. 2, 2013, http://www.independent.co.uk/voices/comment/its-charlie-hebdos-right-to-draw-muhammad-but-they-missed-the-opportunity-to-do-something-profound-8435693.html.
  7. See Wikipedia, https://en.wikipedia.org/wiki/Je_suis_Charlie; see also, e.g., Catherine Mayer, Je Suis Charlie: Crowds in London Stand With Charlie Hebdo, Time, Jan. 7, 2015, http://time.com/3658499/london-crowds-unity-charlie-hebdo; Benjamin Mullin, ‘Je Suis Charlie’: U.S. journalism organizations join Charlie Hebdo in solidarity, Poynter, Jan. 7, 2015, http://www.poynter.org/news/mediawire/311069/je-suis-charlie-u-s-journalism-organizations-join-charlie-hebdo-in-solidarity.
  8. See Jeffrey Goldberg, We are not all Charlie, The Atlantic, Jan. 8, 2015, http://www.theatlantic.com/international/archive/2015/01/we-are-not-all-charlie-hebdo-attack/384319/
  9. Joe Conason, What ‘Je Suis Charlie’ Should Mean to Us, Truthdig, Jan. 9, 2015, http://www.truthdig.com/report/item/what_je_suis_charlie_should_mean_to_us_20150109.
  10. See generally Seven reasons why people are saying ‘Je ne suis pas Charlie’, The Week, Jan. 14, 2015, http://www.theweek.co.uk/world-news/charlie-hebdo/62060/seven-reasons-why-people-are-saying-je-ne-suis-pas-charlie
  11. See, e.g., Clare Short, Charlie Hebdo – You are not allowed to say that, Faith in our Families, Jan. 8, 2015, http://faithinourfamilies.com/2015/01/08/charlie-hedbro-you-are-not-allowed-to-say-that; David Brooks, I am not Charlie Hebdo, The New York Times, Jan. 8, 2015, http://www.nytimes.com/2015/01/09/opinion/david-brooks-i-am-not-charlie-hebdo.html; see also, e.g., Scott Jaschik, Outrage Over Student’s Tweets, Inside Higher Education, Dec. 23, 2014, https://www.insidehighered.com/news/2014/12/23/debate-brandeis-over-students-twitter-comments-murder-nyc-police-officers (reporting calls for a student at Brandeis University to be expelled over a tweet expressing a lack of sympathy for the murdered NYC cops because she “hate[s] this racist fucking country”).
  12. Brendan Bordelon, ‘I AM NOT CHARLIE’: Leaked Newsroom E-mails Reveal Al Jazeera Fury over Global Support for Charlie Hebdo, National Review Online, Jan. 9, 2015, http://www.nationalreview.com/corner/396131/i-am-not-charlie-leaked-newsroom-e-mails-reveal-al-jazeera-fury-over-global-support.
  13. See, e.g., Arthur Chu, Trolls and Martyrdom: Je Ne Suis Pas Charlie, The Daily Beast, Jan. 9, 2015, http://www.thedailybeast.com/articles/2015/01/09/trolls-and-martyrdom-je-ne-suis-pas-charlie.html.
  14. Wells, Je ne suis pas Charlie: Why ‘Assholes’ can’t be Heroes, ABC Religion, Jan. 15, 2015, http://www.abc.net.au/religion/articles/2015/01/15/4162569.htm.
  15. Cross, Je ne suis pas Charlie: On the Charlie Hebdo massacre and dueling extremisms, Feministing, Jan. 8, 2014. In the United States, the Charlie massacre followed hot on the heels of a controversy in which Sony Pictures was bullied, presumptively by North Korean hackers, into scrubbing the release of a movie titled The Interview, in which two American boobs attempt to kill the dictator of North Korea, identified by his actual name and, it would appear, known (if exaggerated) idiosyncrasies. Then as now, response was divided between those who emphasized the broader principles of free speech and those who felt that the puerile, crass, worthlessness of the movie made it a poor vehicle indeed for a debate about free speech. Cross adds: “[W]hat both cases have in common is an impoverished idea of free speech that is actually anathema to a democratic society, makes idols of art that should be up for discussion, and threatens to make a mockery of the very ideals people claim to be defending now.”
  16. Francis Rocca, Pope says respect for religion should limit freedom of expression, Catholic News Service, Jan. 15, 2015, https://cnsblog.wordpress.com/2015/01/15/pope-says-respect-for-religion-should-limit-freedom-of-expression/?utm_medium=twitter&utm_source=twitterfeed
  17. Cf. Simon Dodd, The NSA programs, 3 MPA 114, 115-16 (2013) (distinguishing the existence of Congressional authority over the military from the wisdom of exercising that power).
  18. Bill Donohue, Muslims are right to be angry, Catholic League Blog, Jan. 7, 2015, http://www.catholicleague.org/muslims-right-angry.
  19. See Cohen v. California,  403 U.S. 15 (1971).
  20. Id., at 18; see, e.g., The Legacy: The Vietnam War in the American Imagination 312 (Shafer, ed. 1990).
  21. Id. (emphasis added).
  22. Philip Gourevitch, The pen vs. the gun, The New Yorker, Jan. 8, 2015, http://www.newyorker.com/culture/cultural-comment/pen-vs-gun-charlie-hebdo (last visited Jan. 27, 2014).
  23. See https://www.youtube.com/watch?v=GwycJcJ4T8op.
  24. See https://www.youtube.com/watch?v=upvZdVK913I (last visited Jan. 27, 2014).
  25. See, e.g., Steven Elbow, Negotiating the N-word: It’s pervasive in pop culture, toxic in schools, Madison, WI Capital Times, June 18, 2014, http://host.madison.com/news/local/writers/steven_elbow/negotiating-the-n-word-it-s-pervasive-in-pop-culture/article_ccc94a5a-f65c-11e3-aca3-001a4bcf887a.html; but see Andres Tardio, Chuck D Criticizes Iggy Azalea, N-Word Usage, HipHopDX.com, July 10, 2014, http://www.hiphopdx.com/index/news/id.29674/title.chuck-d-criticizes-iggy-azalea-n-word-usage-.
  26. See, e.g., Reed McConnell, Why Harvard’s Hate Speech Policies Are Necessary, The Harvard Crimson, April 18, 2012, www.thecrimson.com/article/2012/4/18/hate-speech-libertarians; Gerald Uelmen, The Price of Free Speech: Campus Hate Speech Codes, http://www.scu.edu/ethics/publications/iie/v5n2/codes.html.
  27. Compare Jared Taylor, Why We Should Ban “Hate Speech”, American Renaissance, Aug. 24, 2012, http://www.amren.com/features/2012/08/why-we-should-ban-hate-speech, with John Paul Stevens, Should Hate Speech Be Outlawed?, NY Rev. Books, June 7, 2012, http://www.nybooks.com/articles/archives/2012/jun/07/should-hate-speech-be-outlawed.
  28. Cf. Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring).
  29. 395 U.S. 444 (1969).
  30. Cf. Roger Waters, The Bravery of Being Out of Range on Amused to Death (Columbia Records, 1992).
  31. “Forty-five states and the District of Columbia have enacted hate crime penalty-enhancement laws, many based on a model statute drafted by the Anti-Defamation League in 1981.” Indiana needs a hate crime law, Indianapolis Star, March 7, 2014, www.indystar.com/story/opinion/readers/2014/03/07/indiana-needs-a-hate-crime-law/6184417. See, e.g., 18 U.S.C. § 249(a); 720 ILCS 5/12-7.1; Mo. Rev. Stat. § 557.035.1.
  32. See, e.g., Wikipedia, https://en.wikipedia.org/wiki/Brights_movement.
  33. Graglia, Government promotion of moral issues, 31 Harv. J. L. & Pub. Pol. 69, 75 (2008).
  34. Verena Dobnik, New Yorkers Rally, Proclaim “Je Suis Charlie”, NBC 4 New York, Jan. 11, 2015, http://www.nbcnewyork.com/news/local/New-Yorkers-Rally-Proclaim-Je-Suis-Charlie-Washington-Square-Park-288156131.html.
  35. Available at http://www.vatican.va/holy_father/john_paul_ii/messages/peace/documents/hf_jp-ii_mes_19801208_xiv-world-day-for-peace_en.html.
  36. Cf. Wells, supra note __, part III.
  37. Stevens, supra note __.

Tweaking the governmental process: Some modest suggestions

Whether or not Ezra Klein understands that there is a difference between what Klein would like the President to say at the State of the Union and what President Obama would like to say, 1 and setting aside the various problems with his piece, and, indeed, whether the State of the Union speech ought to exist at all, 2 it does raise a point worthy of consideration: Are there procedural tweaks that would benefit our government? 3 I will suggest a few such tweaks, one of which might well meet Klein’s approval, and several that would not.

To start with a note of concord, my first proposal is that the Senate should adopt fast-track default-approval procedures for executive-branch nominations and cultivate a culture of deference on those nominations. Even if one does not believe, as I do, that the President should generally get their choice of executive-branch appointments, 4 one should as a practical matter acknowledge the danger in which the confirmation wars have placed us. Presidents will be advised and served by whomsoever they please, and will not be constrained by congressional disapproval of their choices. If the President cannot have Mrs. X as his Secretary of Y, he will simply appoint her to an advisory position such as a czar of something-like-Y, or counselor to himself or Mr. Z, the titular secretary of Y. My example is from less than a month ago: President Obama nominated Antonio Weiss to be a Treasury Department undersecretary, and when the Senate deep-sixed the nomination, Weiss was simply appointed to be a “counselor” to the Treasury Secretary, a position to which Senate assent is not required. 5

This cannot be anything but bad for the republic. It’s analogous to the failure of CSPAN: CSPAN has made government less transparent, because making law, like making sausage, is an ugly business, and lawmakers are not going to do that work on camera. CSPAN thus forced the real business of legislation off the floor, where it had been subject to public scrutiny through the Congressional Record, and into private rooms, where it is subject to no scrutiny at all. Thus, not only does CSPAN fail to achieve its aims, its presence is detrimental because it displaces the real locus of power into the shadows. In the same way, the predictable result of the misguided war on executive-branch nominations will not be greater accountability, it will be a shift of the real locus of power further into the shadows. The trend will be for positions subject to Senate confirmation to be filled by safe, bland frontmen while real power and influence in the departments shifts to grey eminences styled as “counselors” subject only to Presidential approval.

What is needed is a culture change in the Senate, a deferential attitude toward the President’s nominations. But since our focus is on rule changes, let me suggest a rule change that would encourage better behavior: The Senate should adopt a procedural rule that all executive-branch nominations are automatically approved fourteen working days after the nomination is filed with the Senate unless ten Senators file a motion for the Senate to review the nomination in more depth. And the kicker is this: Signing such a petition suspends a Senator’s sponsorship privileges for a period of time. (Say, one month.) Nominations subject to such a motion would then move through the Senate in the traditional way. You want to make it simple for routine nominations to be approved, and possible for extraordinary nominations to be stopped, but at the same time you want to discourage wanton, irresponsible opposition by attaching a cost to it.

So much for nominations; what about legislation? One of the problems for both lawmakers and those who hope to keep an eye on what they’re up to is the sheer volume of text that is proposed in each Congress, much of it entirely frivolous. I would suggest two changes. The first is another change to the economics of legislative action: Rules that permit legislators to introduce only X bills (and co-sponsor only Y bills) in each session. The lower the limit, the stronger the disincentive to frivolous, ill-considered, or redundant bills and the stronger the incentives to work together. Misbehavior is much more likely when it is within a person’s discretion and there is no price attached. Second, a germanity rule. Page limits are impractical because some subjects are irreducibly complex, but a rule that any bill must be compact and deal with related subject-matter, subject to a point of order that kills the bill, might restrict the size of bills and eliminate omnibus spending bills.

What about the process of legislating? My view is that Congress is dysfunctional because its committees no longer perform their intended functions, and neither the House nor the Senate function as a legislature, which is to say, they do not meet, discuss bills, and propose and discuss compromises and amendments prior to approving or rejecting legislation. Instead, the legislative process today works like this: Legislators grandstand for the cameras in a committee room, and then the bill goes to the floor where legislators make grandstanding speeches to the cameras while purporting to speak to empty benches. Then people wander in and out to vote, and the vote is held open by the presiding officer until the correct result is reached. 6 We can fix this. First, we eliminate the incentive to grandstand by throwing CSPAN out of the capitol and the committee rooms. That’s the hardest sell of all, but it will fix a lot of the problems and make it possible to reform the committee process. Once the committees are no longer opportunities to film footage for the legislator’s Youtube feed and Facebook page, there will be little incentive for grandstanding, and committees can revert to their factfinding, winnowing, and drafting role, pipelining in expertise that legislators themselves lack. Somewhat easier to sell (but only somewhat) are the enforcement of quorum requirements for the House and the Senate and ending the odious practice of revision and extension of remarks, which permits legislators to say anything (or nothing) on the floor and insert whatever they please in the Congressional Record. 7 These changes would be massively unpopular with legislators, but I suggest that they are relatively easy sells for a simple reason: The motions to dispense with the quorum call and to revise and extend require unanimous consent, which implies that any single, brave legislator could shut down those two practices tomorrow. A group of legislators committed to objecting to such motions could end them for good.

Finally, let us talk about the composition of Congress, which, alas, and alone of my suggestions, would necessitate constitutional change. Enough has been written about term limits, the need for which we may take as a given. My focus is different. Klein cites the Seventeenth Amendment as a procedural change that we have done in the past; I would suggest undoing it as a procedural change that we need now. 8 Most of the federal usurpations and encroachments that took place during the twentieth century could not have passed a Senate in which the states qua states were represented, as per the original design, and the most heated arguments in Constitutional Law over what Congress has the power to do would be moot because no one would seriously entertain the proposition that the Senate would approve such actions even were the House to approve them.

Here my example is a pair of cases from the late 1990s, Seminole Tribe v. Florida and Alden v. Maine. Sovereign immunity has been a controversial and thorny doctrine for more than a century, and the Supreme Court was asked to consider whether Congress, when acting pursuant to its Article I powers, could abrogate state sovereign immunity in the federal courts (Seminole Tribe) or, yet more invasively, the state’s own courts (Alden). As a matter of law, the answer is obviously no, and the court correctly said no. But it said no 5-4, and most of the academy, which at that point was still an almost wholly-owned subsidiary of the Democratic Party, went berserk. Had the Seventeenth Amendment never been passed, the provisions by which Congress attempted to subject the states to such suits would have lost unanimously in the Senate, and so would never have been subject to litigation in the first place.

Restoring selection of Senators to state legislatures would simultaneously reinvigorate state legislatures, drain the partisanship out of the Senate, improve the quality of men and women who serve in the Senate (which, with Tocqueville’s observations in mind, is rapidly declining into a mirror-image of the House), and restore the structural check on federal encroachment that was essential to the Constitutional design.

Long-time readers will of course note that none of these are new themes for me, but I remain of the view that they are needful prescriptions.

Notes:

  1. See Klein,  What Obama would say at the State of the Union if he were being brutally honest, Vox.com, Jan. 20, 2015, http://www.vox.com/2015/1/20/7852905/obama-state-of-the-union (all web resources herein cited as last visited Jan. 24, 2015). There is room for doubt whether Klein, a hack’s hack of some years’ standing, understands that difference.
  2. I say no. See, e.g., Steve Chapman, Cancel the State of the Union, Washington Examiner, Jan. 17, 2015, http://www.washingtonexaminer.com/cancel-the-state-of-the-union/article/2558834. Like Justice Scalia, I concluded a number of years ago that it has become a tawdry spectacle that is unworthy of our republic and demeaning to all three branches of government. See Scalia: State of the Union “has turned into a childish spectacle”, CBS News, Feb. 13, 2013, http://www.cbsnews.com/news/scalia-state-of-the-union-has-turned-into-a-childish-spectacle.
  3. While political commentary is beyond Motu Proprio‘s ordinary ambit, I will assert proprietor’s privilege as I deem proper, whether expressly, see Simon Dodd, Judicial conservatism and the Obamacare cases, 2 MPA 26, 40-41 n.1 (2012), or tacitly, see, e.g., Dodd, The NSA programs, 3 MPA 114 (2013).
  4. The unitary executive doctrine makes the President’s officers his hands and surrogates, which means that (s)he cannot govern effectively unless (s)he is able to choose her own officers, which in turn implies he need for a norm of strong deference to her selections. I underscore two points here: First, deference is not abdication, see The NSA programs, supra, 3 MPA at 120-21, and second, that this applies only to executive-branch officers, and not to judicial appointments, which should receive significant scrutiny. Various posts that I wrote for SF explored these themes, which we need not rehearse anew today.
  5. Ian Katz et al, Weiss Withdraws as Treasury Nominee, Will Become Lew Adviser, Bloomberg News, Jan. 12, 2015, http://www.bloomberg.com/news/2015-01-12/weiss-withdraws-from-consideration-as-treasury-undersecretary.html.
  6. See, e.g., Wikipedia, http://en.wikipedia.org/wiki/Medicare_Prescription_Drug,_Improvement,_and_Modernization_Act#Legislative_history.
  7. The most notorious abuse of this process saw two Senators fabricate a debate that never happened in order to cite it in an amicus brief before the Supreme Court. See John Dean, Senators Kyl and Graham’s Hamdan v. Rumsfeld Scam, Findlaw, July 5, 2006, http://writ.news.findlaw.com/dean/20060705.html.
  8. I made the case for repeal in a lengthy SF post several years ago; it will eventually reappear when I finish editing the long-promised oft-delayed Overthinking It collection.

Reflections on the Eucharistic dialogue of John 6

Editor’s note: This semester, as last, I am taking a theology class, and to the extent that my written submissions are thought canonical, excerpts will appear here under the TH225 tag after submission and grading. For last semester, see the TH200 tag.

In this assignment, we are asked to discuss the single story from the New Testament that we would tell if asked our “favorite” story from it, with particular attention to “meaning [that we] … draw from it” and the “impact [that it] … has had” on us. For me, that is the Eucharistic dialogue of John 6, the prototypical “hard saying,” and the meaning that I took from it had a significant impact on my path.

I.

After the conclusion of the so-called “feeding of the five thousand,”at the pinnacle of His popularity, 1 Jesus seeks solitude on a hillside until evening, whereafter He and the Twelve sailed to Capharnaum overnight. 2 The next morning, the crowds followed Him—perhaps, says Haydock’s Commentary, hoping for another food-related miracle. 3 The lead-in to the Eucharistic dialogue which follows is complex, interweaving two distinct themes. First, Jesus tells the crowd that they are have been fed with perishable food, and should instead seek the imperishable bread of heaven that the Son of Man will give them. 4 Second, Jesus tells them to focus not on earning the perishable food of the world but to earn the imperishable food just mentioned by “believ[ing] in the man whom He has sent.” 5 The crowd then asks Jesus for a miracle to authenticate His testimony. What happens next, in which these two themes come together in what is said by the crowd and by Jesus, bears extended quotation.

They said to him, …. our fathers had manna to eat in the desert…. Jesus said to them, Believe me when I tell you this; the bread that comes from heaven is not what Moses gave you. The real bread from heaven is given only by my Father. God’s gift of bread comes down from heaven and gives life to the whole world. Then, Lord, they said, give us this bread all the while.

But Jesus told them, It is I who am the bread of life; he who comes to me will never be hungry, he who has faith in me will never know thirst … The Jews were by now complaining of his saying, I am myself the bread which has come down from heaven. Is not this Jesus, they said, the son of Joseph, whose father and mother are well known to us? What does he mean by saying, I have come down from heaven?

Jesus answered them, … Believe me when I tell you this; the man who has faith in me enjoys eternal life. It is I who am the bread of life. Your fathers, who ate manna in the desert, died none the less; the bread which comes down from heaven is such that he who eats of it never dies. I myself am the living bread that has come down from heaven. If anyone eats of this bread, he shall live for ever. And now, what is this bread which I am to give? It is my flesh, given for the life of the world.

Then the crowd fell to disputing with one another, How can this man give us his flesh to eat? Whereupon Jesus said to them, Believe me when I tell you this; you can have no life in yourselves, unless you eat the flesh of the Son of Man, and drink his blood. The man who eats my flesh and drinks my blood enjoys eternal life, and I will raise him up at the last day. My flesh is real food, my blood is real drink. He who eats my flesh, and drinks my blood, lives continually in me, and I in him. As I live because of the Father, the living Father who has sent me, so he who eats me will live, in his turn, because of me. Such is the bread which has come down from heaven; it is not as it was with your fathers, who ate manna and died none the less; the man who eats this bread will live eternally.

It is hard to overstate just how offensive must have seemed to his audience: Not only perhaps blasphemous in Jesus’ claimed relationship with God, but moreover repugnant in its cannibalistic-sounding particulars. (Recall, as much as anything, that for His Jewish audience, consumption of any meat with its blood still within it was forbidden by Genesis 9:4, and here is this man insisting that we must eat his flesh and drink his blood!) Small wonder that many left. 6

So: At the height of His popularity, Jesus told a multitude something that sounded spectacularly offensive to their sensibilities. But perhaps the first time he raises the point, in verse 35, He spoke but figuratively? That interpretation is, in my view, foreclosed by Jesus’ reaction to the crowd’s ruffled feathers. Seeing His audience bristle, He does not say anything to encourage a figurative or metaphorical interpretation, but rather, He digs in, insisting upon, intensifying, and underscoring the teaching all the more. 7 Twice. He twice escalates in response to their doubts, and the more his followers bridle, the more forceful, visceral, and (to the audience) repulsive his language becomes. At first, He merely identifies himself as the bread of life in verse 35, before escalating by insisting that his flesh must be “eaten”in verse 52, where the Greek verb is phagein, to eat, simpliciter, and when He at last insists that “he who eats on my flesh and drinks my blood has eternal life” in verse 55, the Greek verb is trogein, which carries the connotation of knawing, munching, or crunching with teeth. 8 (The Vulgate renders this not with the more common edo, to eat, or comedo, to consume or devour, but rather manduco, to chew upon or knaw.) Raymond Brown suggests, plausibly, that St. John is using the word precisely in order “to emphasize the realism of the eucharistic flesh and blood.” 9

Can this passage possibly be taken literally? After I became a Christian, I converted to the Catholic Church in significant part because I concluded that it must be. Like Brown, I think that the teaching of the Eucharistic dialogue of John 6 “cannot possibly be a metaphor for accepting his revelation,” and I concluded that the text will not bear a figurative understanding. 10 Certainly, Jesus spoke figuratively at times, but whereas He promised the Samaritan woman living water that would bring eternal life, He did not say “I am the living water,” nor repeat it with such force as here. It is, moreover, abundantly clear that Jesus could mean what he says literally, in the sense that He certainly has the power to feed to a multitude His body and blood while that body and blood remain undivided: The miraculous multiplication of the undivided loaves and fish (which, recall, immediately precedes this dialogue) precludes our saying otherwise.

Still, it’s a fair question that the crowd asks: “How can this man give us his flesh and blood to eat and drink?” 11

That the dialogue under discussion prefigures the Eucharist is not uncontested. 12 Nevertheless, my own view is that the dialogue’s meaning snaps into sharp focus and its meaning becomes inescapable when taken in connection with the events of the last supper. Let us turn now, briefly, to that narrative.

By way of context, we know that Jesus has been identified as the lamb of God, and we know what that meant to people of that time. 13 We know that the day after the last supper, Jesus—our high-priest after the order of Melchizedek who had offered bread and wine rather than animal sacrifices—would offer himself as an atoning sacrifice for the sins of mankind. 14 We know that the passover sacrifice was eaten. 15 We also know, from the dialogue under discussion, that Jesus has said that we (1) must eat His flesh and drink His blood, or (2) we shall have no life in us. Even if the first clause is not to be taken literally, if the second clause must be taken literally, then it must follow that is some means by which believers in every age can do so, otherwise His promises of salvation are empty. Furthermore, the promise of John 6 is given in the future tense: Jesus promises that at some then-later point, “Jesus will provide never-failing food and drink.” 16 So things stood as the cross hove horrifyingly into view.

And “then came the day of Unleavened Bread on which the Passover lamb had to be sacrificed.” 17 Jesus and the twelve retire to the upper room to celebrate the passover. At that meal, Jesus took the bread, gave thanks, broke it, and gave it to them, saying: “This is my body, given for you; do this in remembrance of me.”And in the same way, he took the cup, saying: “This is the new covenant in my blood, which is to be poured out for you and for many, for the forgiveness of sins.” 18

You must eat my flesh; this is my flesh. You must drink my blood; this is my blood. I suppose that it is possible that both John 6 and the words of institution are figurative, but my own conclusion during my conversion process was that each text is most plausibly understood separately in the literal sense, and that when they are taken together, especially in view of the economy of salvation as we understood it, the literal interpretation has inescapable force. 19 Perhaps the literal sense can be avoided, but it would involve working terribly hard for no particularly good reason.

II.

This passage’s impact on me is straightforward to describe: It supplied a threshold criterion by which I could determine, having become a Christian, to which of the various Christian churches I should belong. If one takes the Lord at his word, it seemed to me, it is therefore necessary to eat His flesh and drink His blood, and this necessarily implies some means by which this can be done. As I tried to figure out to which Church I should belong, my conclusion that the discourse of John 6 must be taken literally winnowed my options: Only the the Catholic Church, the Eastern Orthodox Churches, and to some extent the Lutheran Church seemed to say that one can, and, at communion, in fact eat His flesh and drink His blood.

The Council of Trent’s exposition of the Catholic doctrine on the Eucharist was hammered out at the Council’s thirteenth session:

[In the] Eucharist, after the consecration of the bread and wine, our Lord Jesus Christ, true God and man, is truly, really, and substantially contained under the species of those sensible things … And because Christ, our Redeemer, declared that which He offered under the species of bread to be truly His own body, therefore has it ever been a firm belief in the Church of God, and this holy Synod now declares it anew, that, by the consecration of the bread and of the wine, a conversion is made of the whole substance of the bread into the substance of the body of Christ our Lord, and of the whole substance of the wine into the substance of His blood; which conversion is, by the holy Catholic Church, suitably and properly called Transubstantiation. 20

The Eastern Orthodox churches believe likewise; the 1850 Catechism of St. Philaret helpfully summarizes: “The Communion is a Sacrament, in which the believer, under the forms of bread and wine, partakes of the very Body and Blood of Christ, to everlasting life.” 21 This is possible because by the sacramental action of the celebrant of the Eucharistic liturgy,

the bread and wine are changed, or transubstantiated, into the very Body of Christ, and into the very Blood of Christ. In the exposition of the faith by the Eastern Patriarchs, it is said that the word transubstantiation is not to be taken to define the manner in which the bread and wine are changed into the Body and Blood of the Lord; … but only … that the bread truly, really, and substantially becomes the very true Body of the Lord, and the wine the very Blood of the Lord. 22

The Lutheran Augsburg Confession takes a different tack. It insists only that the Lutheran Churches “teach that the Body and Blood of Christ are truly present,” 23 and in Melanchthon’s Apologia Confessionis Augustanae, a contemporaneous exposition and defense thereof, 24 we read:

The Tenth Article has been approved, in which we confess that we believe, that in the Lord’s Supper the body and blood of Christ are truly and substantially present, and are truly tendered, with those things which are seen, bread and wine, to those who receive the Sacrament. This belief we constantly defend, as the subject has been carefully examined and considered. For since Paul says, 1 Cor. 10:16, that the bread is the communion of the Lord’s body, etc., it would follow, if the Lord’s body were not truly present, that the bread is not a communion of the body, but only of the spirit of Christ. And we have ascertained that not only the Roman Church affirms the bodily presence of Christ, but the Greek Church also both now believes, and formerly believed, the same. For the canon of the Mass among them testifies to this, in which the priest clearly prays that the bread may be changed and become the very body of Christ. And Vulgarius, who seems to us to be not a silly writer, says distinctly that bread is not a mere figure, but is truly changed into flesh. And there is a long exposition of Cyril on John 15, in which he teaches that Christ is corporeally offered us in the Supper. For he says thus: Nevertheless, we do not deny that we are joined spiritually to Christ by true faith and sincere love. But that we have no mode of connection with Him, according to the flesh, this indeed we entirely deny. And this, we say, is altogether foreign to the divine Scriptures. For who has doubted that Christ is in this manner a vine, and we the branches, deriving thence life for ourselves? Hear Paul saying 1 Cor. 10:17; Rom. 12:5; Gal. 3:28: We are all one body in Christ; although we are many, we are, nevertheless, one in Him; for we are, all partakers of that one bread. Does he perhaps think that the virtue of the mystical benediction is unknown to us? Since this is in us, does it not also, by the communication of Christ’s flesh, cause Christ to dwell in us bodily? And a little after: Whence we must consider that Christ is in us not only according to the habit, which we call love, but also by natural participation, etc. We have cited these testimonies, not to undertake a discussion here concerning this subject, for His Imperial Majesty does not disapprove of this article, but in order that all who may read them may the more clearly perceive that we defend the doctrine received in the entire Church, that in the Lord’s Supper the body and blood of Christ are truly and substantially present, and are truly tendered with those things which are seen, bread and wine. And we speak of the presence of the living Christ [living body]; for we know that death hath no more dominion over Him, Rom. 6:9.

By contrast, the Westminister Confession insists that although transsubstantiation, “[t]hat doctrine which maintains a change of the substance of bread and wine, into the substance of Christ’s body and blood … by consecration of a priest, or by any other way, is repugnant, not to Scripture alone, but even to common sense, and reason,” and gives rise to superstition and error, nevertheless,

[w]orthy receivers, outwardly partaking of the visible elements, in this sacrament, do then also, inwardly by faith, really and indeed, yet not carnally and corporally but spiritually, receive and feed upon, Christ crucified, and all benefits of His death: the body and blood of Christ being then, not corporally or carnally, in, with, or under the bread and wine; yet, as really, but spiritually, present to the faith of believers in that ordinance, as the elements themselves are to their outward senses. 25

And the Articles of Religion advance a materially-identical charge about Transubstantiation, before insisting that, nevertheless, “[t]he Body of Christ is given, taken, and eaten, in the Supper, only after an heavenly and spiritual manner. And the mean whereby the Body of Christ is received and eaten in the Supper, is Faith.” 26 There are subtle differences between these two positions, but where they differ fatally from the received tradition acknowledged by the Catholic, Orthodox, and (so far as we have said thusfar, but more on this anon) Lutheran churches is their common denial of the possibility of a literal, real bodily presence of Christ. That proposition is at war with my interpretation of the the Eucharist, which is grounded primarily in the Eucharistic dialogue of John 6, which therefore exclude from my consideration those churches which proceed from those confessions.

Not so subtle are the differences between the clarity of the Catholic and Orthodox Churches, on the one hand, and what would appear to be the jumbled incoherence into which Lutheranism rapidly lapsed. In due course, the seemingly-favorable 1530 Augsburg Confession quoted above lapsed into a hostile hodgepodge of doctrine reflected in the 1536 Wittenberg Concord, 1537 Smalcald Articles, and 1577 Formula of Concord. The doctrine seemingly-reflected in the Augsburg Confession, sometimes termed “consubstantiation,” “according to which there are two factors, viz., the material bread and wine, and the immaterial or spiritual body of Christ, united or consubstantiated in the consecrated sacramental symbols,” was attacked by reformed theologians as “not differ[ing] in kind from the Papist doctrine of Transubstantiation, according to which there is indeed but one element in the consecrated symbol, but that is the very body and blood of Christ into which the bread and wine have been transmuted.” 27 Lutheran Apologists were swift to throw the doctrine under the bus. They insisted that the Lutheran Church had “uniformly … denied” consubstantiation and “rejected the … imput[ation of the doctrine] to her,” 28 pointing out that the Formula of Concord “reject[ed] and condemn[ed] … [t]he papistic transubstantiation, when it is taught in the Papacy that in the Holy Supper the bread and wine lose their substance and natural essence, and are thus … changed into the body of Christ,” and insisted that although “the body and blood of Christ are received with the bread and wine, not only spiritually by faith, but also orally; yet not in a Capernaitic, but in a supernatural, heavenly mode.” 29 Christ’s presence in the Eucharist, it says, “is not [physical or] earthly, nor Capernaitic; nevertheless it is true and substantial…..”

At the same time, however, and in almost the same breath, the Formula rejected the Calvinist, Anabaptist, and Anglican positions that “in the Holy Supper the body of Christ is not received orally with the bread; but that with the mouth only bread and wine are received, the body of Christ, however, only spiritually by faith,” that “the bread and wine are only figures, similitudes, and representations of the far absent body and blood of Christ,” that “the bread and wine are no more than a memorial, seal, and pledge, through which we are assured that when faith elevates itself to heaven, it there becomes partaker of the body and blood of Christ as truly as we eat bread and drink wine in the Supper,” and most vitally of all, “[t]hat unbelieving, impenitent Christians do not receive the true body and blood of Christ in the Holy Supper, but only bread and wine.” The Formula “utterly [rejected and] condemn[ed] the Capernaitic eating of the body of Christ, as though His flesh were rent with the teeth, and digested like other food,” and then, in the same sentence, insisted that

according to the simple words of the testament of Christ, the true, yet supernatural eating of the body of Christ, as also the drinking of His blood, which human senses and reason do not comprehend, but as in all other articles of faith our reason is brought into captivity to the obedience of Christ, and this mystery is not apprehended otherwise than by faith alone, and revealed in the Word alone.

This is a dense thicket of words to uncertain effect. Perhaps it can be resolved and accounted for; it is beyond our scope to definitively resolve. Suffice to say that when I evaluated lutheranism, these muddled explanations struck me as an awfully busy, strained attempt to evade of what seemed to me to be the clear import of the relevant scriptural texts. I therefore rejected it and moved on. 30

* * *

The Eucharistic Dialogue of John 6 provides vital contextualization that helps explain the Last Supper—which, in turn, provides a vital contextualization to John 6, asking the pregnant question posed by Jesus’ critics: “How can this man give us his flesh and blood to eat and drink?” As it turns out, with God, all things are possible. 31

 

Notes:

  1. See, e.g., John MacArthur, MacArthur New Testament Commentary on Matthew 8-15 426 (1987).
  2. See Jn 6:15 et seq.
  3. Available at http://haydock1859.tripod.com/id99.html (all web resources herein cited as last visited Jan. 14, 2015).
  4. Jn 6:26-27.
  5. Jn 6:27, 29.
  6. Jn 6:67.
  7. Francis Moloney, The Gospel of John 219 (1998).
  8. See id., at 221.
  9. Raymond Brown, The Anchor Bible: The Gospel Acccording to John I-XII 283 (1966).
  10. See id., at 284. Brown adduces what we would now regard as an originalist analysis to show that any metaphorical sense of the phrasing would have a completely different ring antithetical to the “ring” of the passage. Cf. Frank H. Easterbrook, The Role of Original Intent in Statutory Construction, 11 Harv. J.L. & Pub. Pol’y 59, 61 (1988) (situating the meaning of a text in “the ring the words would have had to a skilled user of words at the time”).
  11. Jn 6:52; see Moloney, supra note 7, at 219.
  12. See, e.g., Brown, at 272.
  13. See Jn 1:29; Scott Hahn, The Lamb’s Supper 16 ff. (1999).
  14. See Heb 7:9; Nikolaus Gihr, The Holy Sacrifice of the Mass 121 (1902).
  15. See, e.g., Hahn, supra, at 20 ff.
  16. Moloney, supra note 7, at 214.
  17. Lk 22:7.
  18. Mt 26:26-28; Lk 22:19-20.
  19. To take only a few examples from the Church Fathers: St. Cyril of Jerusalem remarks that Jesus had, “by his own will, once changed water into wine at Cana in Galilee. So why should we not believe that he can change wine into blood?” Quoted in Alistair McGrath, The Christian Theology Reader 520 (2d ed, 2001).  St. John Chrysostom remarks that “His word cannot deceive, but our senses are easily beguiled … Since then the word says, ‘This is my body,’ let us both be persuaded and believe, and look at it with the eyes of the mind … How many now say, I would wish to see His form, the mark, His clothes, His shoes. Lo! You see Him, Thou touchest Him, you eat Him. And thou indeed desirest to see His clothes, but He gives Himself to you not to see only, but also to touch and eat and receive within you.” Homily 82 on Matthew c.4, available at http://newadvent.org/fathers/200182.htm. St. Hilary of Poitiers remarks that Jesus Himself says: “My flesh is meat indeed, and My blood is drink indeed. He that eats My flesh and drinks My blood abides in Me, and I in him. As to the verity of the flesh and blood, then, there is no room left for doubt. For now both from the declaration of the Lord Himself and our own faith, it is truly flesh and truly blood.” On the Trinity 8:14, available at http://www.newadvent.org/fathers/330208.htm. Accord, e.g., 2 Faith of the Early Fathers 58-59 (Jurgens, ed.. 1979) (“The bread again is at first common bread; but when the mystery sanctifies it, it is called and actually becomes the Body of Christ” (St. Gregory of Nyssa)); id., vol. 3, at 30-31 (“not all bread, but only that which receives the blessing of Christ, becomes Christ’s body” (St. Augustine of Hippo)).
  20. Available at https://history.hanover.edu/texts/trent/ct13.html.
  21. Available at http://www.pravoslavieto.com/docs/eng/Orthodox_Catechism_of_Philaret.htm
  22. Id.
  23. Available at http://bookofconcord.org/augsburgconfession.php#article10.
  24. Available at http://bookofconcord.org/defense_8_holysupper.php#article10.
  25. Available at http://www.reformed.org/documents/wcf_with_proofs.
  26. Available at http://anglicansonline.org/basics/thirty-nine_articles.html.
  27. 2 William Shedd, History of Christian Doctrine 451 (3d ed. 1868).
  28. G. Diehl, The Lord’s Supper, in Lectures on the Augsburg Confession 348-49 (1888); accord, e.g., Charles Krauth, The Conservative Reformation and its Theology 130 (1872).
  29. Available at http://bookofconcord.org/fc-ep.php.
  30. Here we shall leave off a story that is picked up in The Catholic Proposition, 2 MPA __ (2012), available at http://simondodd.org/docs/Simon%20Dodd,%20The%20Catholic%20Proposition%20-%20final.pdf, and Authoritative teaching, 3 MPA __ (2013)
  31.  Mt 19:26.

Cardinalatial appointments

In a conclave to be held next month, Francis will give fifteen bishops red hats, and Father Dwight Longenecker draws attention to the fact that neither Blase Cupich, the newly-minted Archbishop of Chicago, nor Jose Gomez, the Archbishop of Los Angeles since 2011, are among them. 1 There are several problems with Longenecker’s piece, but I want to focus on just one. Careful writers do well to avoid shaky inferences, but Longenecker writes: “Francis is relegating some of the major Catholic players from the high table. Los Angeles and Chicago not having cardinals? That’s a big deal and it must mean that little Francis, the bus riding bishop from Argentina is making a point.” It isn’t a big deal, and it need not mean any such thing.

I had thought that popes customarily avoid giving any given bishopric two votes in the conclave by prematurely elevating the successor of a Cardinal who is still eligible to vote. 2 And both Gonzales’ and Cupich’s predecessors, Roger Card. Mahoney and Francis Card. George remain eligible to vote in a conclave. (Cupich, moreover, has been in the job for about an hour.) Los Angeles did not “have” (in the sense of “was not led by”) a Cardinal between Mahoney’s unfortunate appointment in 1985 and his lamentable elevation in 1991, after his predecessor, Timothy Card. Manning, died aged 79. (Chicago’s situation was different because George’s predecessor, Joseph Card. Bernardin, had died in the job.)

One might as well ask why Archbishop Chaput (D. Philadelphia) has not yet received a red hat: Justin Card. Rigali is still eligible to vote. If Francis is deliberately eschewing any elevation, it’s Chaput, who represents much of what Francis is not, but Chaput is not yet being slighted. Or consider that Vincent Card. Nicols was on the job for three consistories before finally receiving a red hat in 2014. All manner of hay might be made from that; after all, one would have to go back a century—to Francis Card. Bourne, who became Archbishop of Westminster on September 11, 1903 and was not elevated to the cardinalate until November 27, 1911—to find a prelate who has occupied the see of Westminister for so long without being made a Cardinal as Nicols. 3 But Nicols’ predecessor, Cormac Card. Murphy-O’Connor, did not turn eighty until a few weeks before Pope Benedict’s final conclave, announced in October 2012, and that conclave was itself extraordinary. Similarly, Timothy Card. Dolan’s elevation came in February 2012, weeks before his predecessor, Edward Card. Egan, turned eighty.

The same is true of Madrid, also cited by Longenecker. Like Cupich, Carlos +Sierra has been on the job for a short period of time, and his see has an emeritus bishop, Antonio Card. Varela, who is still eligible to vote in conclave. If any lacunae in the list are odd, it is Venice and Turin. Francesco +Moraglia was appointed patriarch of Venice in 2012, and his predecessor, Angelo Card. Scola, did not retire but was instead transferred to the archbishopric of Milan. Cesare +Nosiglia was appointed to succeed Severino Card. Poletto in 2010, but Poletto turned 81 last spring. Both sees are traditionally led by a cardinal, and the situations of neither Scola nor Poletto pose obstacles to giving red hats to Moraglia and Nosiglia. If there is hay to be made, it is those two omissions, not Chicago, L.A., or Madrid.

Notes:

  1. Longenecker, What’s Pope Francis Up To?, Standing On My Head, January 6, 2015, http://www.patheos.com/blogs/standingonmyhead/2015/01/whats-pope-francis-up-to.html (last visited Jan. 12, 2015).
  2. And perhaps I was wrong, but cf. Don Clemmer, A Numbers Exercise with Cardinals, USCCB Media Blog, April 17, 2009, usccbmedia.blogspot.com/2009/04/numbers-exercise-with-cardinals.html (last visited Jan. 12, 2015) (“tradition does not allow for more than one cardinal who is eligible to vote in a conclave for a new pope per diocese”).
  3. See Simon Dodd, Still no red hat for +Nicols, Motu Proprio, Oct. 24, 2012, http://simondodd.org/blog/?p=814.

Solemnity of the Nativity, the year of our salvation 2014

O magnum mysterium et admirabile sacramentum, ut animalia viderent Dominum natum, iacentem in praesepio! Beata Virgo, cuius viscera meruerunt portare Dominum Christum. Alleluia! O great mystery and wonderful sacrament, that animals might see the born Lord, lying in a manger! Blessed is the Virgin whose womb merited to bear Christ the Lord. Alleluia!

A cohesive environmentalism: Some preliminary concerns

In this paper, we are asked to consider what are, by my lights, four questions pertaining to the relationship of Christian faith to environmental concerns and that which is sometimes called the “eco-justice” movement. I would break the block of questions out this way:

1. Do you agree that we humans need to make dramatic changes in the way we use and relate to earth and everything on the earth?
2. What, for you, is the most convincing or fundamental explanation for our overuse and destruction of natural resources? Is it that we are greedy? Do we feel we have a God-given right to use the earth for our own benefit? Both?
3. How should we think about our relationship with the rest of nature? Do you think of human beings as superior to or more valuable and important than other species? Are we, in other words, “above” the rest of nature in some sense? What do you think of the idea of living “in courteous communion with all other creatures” (Fischer/Hart 186-187)? What for you would be a good (balanced?) way to think about our relationship with nature?
4. What does it mean for you to be a “steward of creation?”

It may be useful at the outset to place concerns about the world into perspective. Yves Cardinal Congar’s evocative description of the Church as a liferaft for a world destined to sink tells us lyrically of what is to come, 1 but the traditional Mass and burial service are frank and direct in the prayers Dies irae and Libera me: The end will come, “that awful day when the heavens and earth shall be shaken and [He] shall come to judge the world by fire,” “[t]he day of wrath, that day [that] will dissolve the world in ashes.” At this terminus, heaven will not descend upon the Earth à la Gallifrey in The End of Time, but rather, the righteous will be taken to heaven. 2 Our Savior appears to confirm this when He tells he apostles that having returned to the Father to “prepare a place for you, I will come again and will take you to myself, that where I am you may be also,” 3 and one would seem on firm ground to observe that the Father Himself implies it in negativo when He says that “[w]hile the earth remains, seedtime and harvest, cold and heat, summer and winter, day and night, shall not cease.” 4

Nevertheless, “no one knows the day or hour when these things will happen, not even the angels in heaven or the Son himself. Only the Father knows.” 5 As the late editor of the journal First Things, Father Richard John Neuhaus, was apt to observe, with a God to whom “a thousand years … are but as yesterday when it is past, or as a watch in the night” (Ps 90:4; 2 Pet 3:8), it is wise to remember that for all we know, “we may well be living in the first days of the early church!” 6

These two observations will serve nicely as parentheses around Christian consideration of our relationship to the environment. The world is ultimately going away, and it is wise that our conscience be clear as if Jesus was coming back tomorrow, but it would be irresponsible and almost selfish to live as though the second coming were happening tomorrow; we must, therefore be good stewards of the creation that God has placed at our service.

“Stewardship” is the key concept, in my own view. Interviewed recently, Senator Angus King of Maine said: “I think we have an opportunity, a moral obligation to pass the planet along to our children and grandchildren in as good or better shape than we found it,” and that’s a nice way to express the point. 7 Having established some Christian parameters to the debate, we must next observe that any Christian perspectives on the debate must start with and harmonize with divine revelation. For that, we turn to the book of Genesis.

In the beginning, God created the heavens and the Earth; he thereafter filled the Earth with assorted flora and fauna. 8 But then God creates man after His own image and likeness, and says: “May he have dominion over” said flora and fauna. 9 God then relates to man directly what we have just heard as the internal conversation of the Holy Trinity before the act of creation, directing man to not only “fill the Earth, but to “subdue” it, and “have dominion” over its flora and fauna. 10 God further underlines man’s position in regard to creation by having him name the animals. 11 Finally, skipping forward several generations, God makes a covenant with Noah, a eighth-generation descendant of Adam. 12After the great flood, God tells Noah:

The fear of you … shall be upon every beast of the earth and upon every bird of the heavens, upon everything that creeps on the ground and all the fish of the sea. Into your hand they are delivered. Every moving thing that lives shall be food for you. And as I gave you the green plants, I give you everything. 13

Fischer & Hart aptly remark that “We do not look to Christian faith for a detailed program of action regarding environmental problems, but rather for insight into the place of nature in God’s plan,” 14 but their general approach epitomizes the troubling attitude of modernist “___[-ist] theology” theologians of their time. The Genesis passages, as Fischer & Hart observe, have survived “several attempts to reinterpret” them in order that they might better conform to the spirit of the ages. 15 Often this has taken form that we see in Fischer & Hart: Acknowledging the clear texts that cut against them as a thesis, cobbling together scraps of poetic texts to fabricate an antithesis, and then declaring that because thesis and antithesis are in equipoise, they are free to cut a “synthesis” from whole cloth.

In point of fact, this particular iteration of the form is doomed. A brief textual exegesis may prove useful. The Latin text of Genesis 1:26—on which we may rely in virtue of the Council of Trent’s admonition that the Vulgate must be “in public lectures, disputations, sermons and expositions, held as authentic” 16—uses the verb praesum in the third-person subjunctive, which literally parses as “let him precede,” but which has the sense of command or higher rank, sharing its root with words such as prelatus (“prelate”) and praefero (“I carry before”). The verb could equally be parsed as “I stand before,” “I preside,” “I rule over,” “I lead or command.” In verses 28-30, the imperative-mood verbs are subjicio and dominor, which respectively have the senses of “subject” and “rule, reign over, govern.” The makeweight passages adduced against the clear senses of these passages are trivial. 17

But whatever the methodology or its prima facie plausibility when applied to any given textual iteration, the fatal flaw is in the underlying approach, for it is never appropriate to begin with an ideological precommitment (“ecology,” “feminism,” “Ayn Rand”—whatever) and then seek to evade obstacles in divine revelation to that precommitment. 18 Any legitimately-Christian approach takes divine revelation as a given and a starting-point. We can and must believe ourselves to be “on absolutely safe ground when we say that what the Old Testament was to our Lord, it must be and shall be to us.” 19 We may not engage in dubious “reimaginings” of scripture, as though we wrote on a blank slate. 20 Nor can we treat scripture as an obstacle to the realization of some secular or secularly-derived goal, a problem to elide by clever exegesis.

Nor are the particular ideas for which Fischer & Hart would clear the road appealing in their romanticization and anthropomorphization of the natural world, and in their encouragement of the substitution of vague naturalism and “Gaia worship” for true faith. Fischer& Hart’s feint that what they presumptuously call the “sacramental” approach may be criticized as failing to “take seriously enough the awful oppression that is part of the mystery and splendor of the universe” exemplifies the former, and an idea attributed by them to Sallie McFague exemplifies the latter. 21 The lion is a splendid creature, to be sure, but to ignore the violence inherent in its feeding cycle is romanticization, and to suggest that the lion “oppresses” the gazelle is anthropomorphization. By contrast, it is not strictly incorrect to suggest that we “see the creator in the creation, the source of all existence in and through all that is bodied forth,” as Fischer & Hart have McFague say, but it seems dangerously misleading insofar as it seems calculated to produce an identification of God with nature, and so the substitution of nature for God. 22 At best, this produces the syncretic ersatz-catholicism that Fischer & Hart attribute to Chardin, 23 at worst, the substitution of Gaia for God. We must, then, rethink.

Taken seriously, the Genesis texts make short work of the questions that focus on “our relationship with the rest of nature” and whether “human beings [are] superior to or more valuable and important than other species? Are we, in other words, ‘above’ the rest of nature in some sense?” As we have seen above, that question is answered on the face of the texts. All creation is good, 24 and declares the glory of God, 25 but it is mankind that is made in the image and likeness of God and appointed captain of creation. And I chose that phrasing not merely for its felicitous alliteration: Like the captain of a ship, we have certain prerogatives, but also a heavy duty of care for our charges. I am unsure what “courteous communion with all other creatures” means, but we must certainly recognize that we have not been given stewardship of creation simply for our enjoyment, which certainly begins with an attitude of respect and thanks for that which God has given us, and a certain parsimony toward our expenditure of those resources.

Therein is a segue. Lurking in the Genesis texts is a point that is easily-missed: God gave creation over to man—not a man, Adam, not to one generation, but to mankind, to all generations. This allows us to straightforwardly answer the final question posed, to wit: What does stewardship mean? It means that each generation receives its inheritance from our ancestors and holds it in trust for our progeny. To be sure, this notion leaves a lot of play in the joints. The parable of the talents found in Matthew 25 demonstrates different ways to approach something over which one is given stewardship; arguments can be made for the approaches of each of the servants as a model for how each generation should handle its inheritance: The chastised servant who passed on exactly what he received, and those who burnished it and returned more. But what none of the servants did was to carelessly squander the money over which he had been made steward, returning nothing to his master. There is room for legitimate debate over whether and how we should seek to burnish our inheritance, but what is in no doubt at all is that, as stewards, we are not so much executors of the dead as fiduciaries of the unborn.

That observation brings us to the remaining questions. I am skeptical of the value of making any “dramatic changes” to any important system, because change brings unforeseen consequences, often detrimental, but always more profound and massive than expected. With Edmund Burke, Michael Oakeshotte, Clinton Rossiter, and the other luminaries of conservative thought, I must warn that all change must be cautious, gradual, and organic. Too often, as libertarians such as Milton Friedmann and Friedrich Hayek have warned us, the “planners” make life worse for the intended beneficiaries of their well-intentioned schemes. I certainly cannot therefore answer the first question in the affirmative. I would, however, add that I can agree that we should consider making changes in the way we use and relate to earth and everything on the earth if our use fails the standards of stewardship that I outlined above, which obliges us to preserve resources for the future. Take, for example, fossil fuels. For years, we have been warned of the looming threats of “peak oil” and anthropogenic climate change, specters that always seem to hover just over the horizon; whatever one may think of these concerns, it is plain that any non-renewable resource, no mater how abundant, must at some point be depleted, and that any input into a system, no matter how small the input or large the system, must at some point have some effect. It is certainly valid in principle to be concerned for depletion of scarce resources and to ask “how may we as stewards best preserve our inheritance?”

Finally, we are presented with a false dilemma: How can we explain “our” overuse and destruction of natural resources; is it greed? Selfishness (that “we feel we have a God-given right to use the earth for our own benefit”)? I think neither. It is more a question of habit and short-sightedness. We have already looked briefly at peak oil, which provides one illustration of the point, but another might be deforestation. On the one hand, it might seem obvious (insofar as forests are the primary means by which breathable air is produced) that depleting the planet’s lung-function is a terrible idea—but then again, people smoke, which does the same thing on a smaller scale: We trade long-term lung-function for immediate gratification. To be sure, the analogy is not exact, because logging has genuine utility while smoking is dissipation, but in both cases, the underlying problem is the same: People are terrible assessors of risk. 26 That is particularly-so when the resource appears unimaginably abundant. There are trillions of trees, so how can cutting down one tree be a problem? How could we possibly deplete this resource? This difficulty of connecting the unbearably-specific instance to the broader question—of course, it is never one tree that is being logged—makes it very difficult for us to believe that there is a serious risk of depleting a resource. Most people are not aware of the extent to which their lifestyles consume resources (for which reason, environmentalists have highlighted concepts such as “carbon footprints”), and even if they are, are not likely to believe that the resources can be depleted.

In fine

Notes:

  1. See Richard McBrien, The Church 222 (2008).
  2. Cf. 1 Thess 4:17.
  3. Jn 14:3
  4. Gen 8:22.
  5. Mk 13:32.
  6. See, e.g., Timothy George, Avery’s Ten Rules, First Things. July 14, 2013, http://www.firstthings.com/web-exclusives/2013/07/averys-ten-rules (last visited Dec. 10, 2014).
  7. Sen. Angus King: Executive Action On Immigration Could Backfire, All Things Considered, Nov. 19, 2014, http://www.npr.org/2014/11/19/365271507/sen-angus-king-executive-action-on-immigration-could-backfire (last visited Dec. 16, 2014).
  8. Gen 1:11, 1:20, 1:24.
  9. Gen 1:26.
  10. Gen 1:28-30.
  11. Gen 2:19.
  12. Genesis 5 gives this geneaology: Adam fathered Seth, who fathered Enosh, who fathered Kenan, who fathered Mahalalel, who fathered Jared, who fathered Enoch, who fathered Methuselah, who fathered Lamech, who fathered Noah, making Noah the great-great-great-great-great-great-great-grandson son of Adam.
  13. Gen 9:1-3.
  14. Kathleen Fischer & Thomas Hart, Christian Foundations 180 (2d ed. 1995). [Editor's note: our principal textbook for this class].
  15. Id., at 182; cf. Rom 12:2.
  16. Canons and Decrees of the Sacred and Ecumenical Council of Trent 19 (Waterworth, trns. 1848).
  17. Accordingly, the attack has frequently turned to the reliability of the Gensis text itself, either directly or through the proxy of “form criticism.” But the Pontifical Biblical Commission addressed this in its responses to eight dubia pertaining to Genesis in 1909. One is directly-pertinent: The commission concluded that it was impermissible to hold that the first three

    chapters of Genesis do not contain the stories of events which really happened, that is, which correspond with objective reality and historical truth; but are either accounts celebrated in fable drawn from the mythologies and cosmogonies of ancient peoples and adapted by a holy writer to monotheistic doctrine, after expurgating any error of polytheism; or allegories and symbols, devoid of a basis of objective reality, set forth under the guise of history to inculcate religious and philosophical truths; or, finally, legends, historical in part and fictitious in part, composed freely for the instruction and edification of souls.

  18. Cf. Antonin Scalia, A Matter of Interpretation 13(1997).
  19. W.H. Griffith, Old Testament Criticism and New Testament Criticism in 1 The Fundamentals: A Testimony to the Truth 119 (Torrey & Dixon, eds., 1914), available at http://ntslibrary.com/PDF%20Books%20II/Torrey%20-%20The%20Fundamentals%201.pdf (last visited Dec. 15, 2014).
  20. See James Packer, Fundamentalism and the Word of God 48-49 (1958).
  21. Fischer & Hart, supra note __, at 187.
  22. One also suspects that Fischer, Hart, McFague, et al would squirm somewhat if confronted with the fact (which they so carefully seek to dethrone) that if we seek the image of the creator, there is only one creature that is described as not only “good” but made in said image.
  23. Id., at 190.
  24. Indeed, in some senses, creation is in better shape than man: Having never fallen, it is not subject to the total depravity of sin and concupiscence that characterizes man. Fischer & Hart’s observation that “[t]he redemption accomplished in”—n.b., in, they say, not by—“Christ is not limited to the individual person, but extends to the whole creation.” Id., at 185. If that is intended to mean that the blood of Christ was poured out for the redemption not only of men but all creation, it reveals a defective soteriology, for one must ask: From what, precisely, do they think that part of creation that did not fall needs to be redeemed? And so from what, precisely, do they think that man needs redeemed?
  25. Ps 19:1
  26. See Eric Horowitz, Why Are People Bad at Evaluating Risks?, Psychology Today, Feb. 2013, http://www.psychologytoday.com/blog/the-inertia-trap/201302/why-are-people-bad-evaluating-risks (last visited Dec. 10, 2014).

R v. Cupich

Prior to becoming a bishop, Blase Cupich served as rector of Canton, OH’s Pontifical Josephinum. Concern has been bruited in Traditional Catholic circles (e.g. this from Angelqueen, and also and this) over a particularly noxious wreckovation of the Josephinum’s chapel that dates to Cupich’s tenure and is therefore attributed to him. This is something worth talking about, because if it is true that the “naive and ignorant modernist ideologue[]” responsible for the wreckovation has just been appointed Archbishop of Chicago merits scrutiny, that would deepen the sense of alarm over Cupich’s appointment. (The quoted text is from this piece by Father Dwight Longenecker, who coyly avoids mentioning what strikes me as the most serious part of the saga, to wit, +Cupich’s involvement vel non.)

If it’s true. Alas, the facts are quite muddy. Cupich was appointed Rector of the Josephinum “in 1989.” But when exactly in 1989? It matters because we learn from this contemporary article that the wreckovation had “begun” (when?) by February 1989, at which time the Josephinum’s rector was still Monsignor Dennis Sheehan. It is quite difficult, then, to even speculate (let alone to say with confidence) just how much damage had already been done by the time that Cupich replaced the “naive and ignorant modernist ideologue[]” who presumably approved the plan, Msgr. Sheehan.

On the other hand, even if he was handed a fait accompli, Cupich failed to fix the damage in his remaining years at the Josephinum, a task that is significant enough that it is not yet complete, yet not so herculean that his successors have been unable to even think it. That is enough to make him an accomplice after the fact, even though it seems a lesser sin than that of Sheehan, seemingly the real villain of the piece. I should think that that would disqualify Cupich from any appointment more prestigious than dog-catcher, myself, but if we are going to fault Francis for appointing a man with such a track-record to Chicago, are we going to fault our beloved Pope-Emeritus, his holiness Benedict XVI, for appointing the same man with the same record to Spokane? Are we going to fault Pope John Paul II, for appointing the same man with the same record to Rapid City?

In any event, we need to be careful to get the facts straight, and the facts do not support the inference that Cupich is himself the principal in this crime.

The Eleventh Hour

Musicam novam præsento. This is an original song that was substantially written in about an hour on Armistice Day. It grew out of a search for a sound for another song that’s in the pipeline; that sound ended up being a Farfisa organ and a Solina string machine layered together and slathered in reverb, and these chords were irresistible. Inspiration is a rare and fleeting thing for me, and I found the chords and the sound evocative of not only an abstract feeling, but also (presumably because of the day) the particular foci and feelings that one associates with Armistice Day: War, death, horror, outrage. And so I ended up with not only some music, but also some doggerel. As it happens, I had been listening to U2’s Bad and Pink Floyd’s inspiring new album The Endless River, which, with their indifference to the usual restraints of songwriting formats, encouraged me to just leave well alone: Here are four chords, a feeling, and some words—go with it. (Subsequently, the words were beaten into shape with help from my wife.)

Let’s talk about tracking. I double-tracked a twelve-string acoustic and a Les Paul into a Vox; there’s also a single-tracked acoustic. I DI’d one track of Ibanez RG and then layered two copies of it using different sounds (both Alain Poulin plugins: LeXTAC, and HyBrit on the MCJ channel), panned left and right. 1 The solo is a Strat into the Molot compressor and an Ignite powertrain; the bass is a five-string P with a Phase 90 in the picked sections. (Gee… Where does that sound come from?) And there are obviously a lot of keyboard layers; the only one that I’ll mention specifically is Roberson Audio’s Prophet 5 clone Prophanity, which is a lot of fun and provides some Vangelis-esque curlicues.

Let’s talk about the mix. Going into post, I had just over a hundred tracks, which were winnowed down by consolidation, elimination, and comping to 62 tracks (including busses and returns). 2 I have two go-to mix EQs (VOS’ BootEQmkII and Sonimus’ SonEQ), and a handful of go-to mix compressors (Minimal Systems’ Punch, an 1176-style comp, VOS’ ThrillseekerLA, an LA 2A -style comp, and Modern Plugins’ Apophis as a mix buss compressor); they remained the workhorses here, but I also used, for the first time,  the Modern Plugins Deathcore (a silly name, but in essence a poor-man’s EL8) on the kick drum and bass guitar, and Sonimus’ Britson console emulation. Tape emulation came from Jeroen Breebaart’s Ferox on a few tracks and VOS’ Ferric on the rest; at this point, I have largely abandoned all delays other than the Classic Delay and VOS’ NastyDLA, which do everything that I want. N.b.: Britson, Airwalker, and Punch are the only commercial plugins involved here, and of those, only Britson is truly irreplaceable: While I love Airwalker and Punch, 3 neither does anything for which free substitutes aren’t available. (The Classic Reverb and Modern Seventh Sign will do the job.) 

A word about reverb. 4 I have taken a different tack with this piece; in all my recent efforts, I have used a single reverb send, with the idea in mind to place all the instruments in a common space. Here, though, I shook things up a little by using three different spaces, conceived as “close,” “mid-distance,” and “backdrop,” ending up with VOS’ EpicVerb on the “backdrop” send, Minimal Systems’ Airwalker on the “mid-distance” send,” and a different EpicVerb setting on the “close” send. (Up until the very last minute, the latter used an IR from a Lexicon 480L, but while I liked the sound, it just wasn’t gelling in the mix.) The notion is that in addition to placement across the stereo spectrum by panning, we want to be able to push sounds forward or backward spatially, which is something that I haven’t really played with before.

Final thought. There are a few issues that I notice and will fix if this piece gets used in an album project; the guitars ended up even lower in the mix than I had intended, and there are some ducking issues with the Farfisa/Solina layer, but overall I think this sounds pretty good and I’m happy with it. The vocals are somewhat pitchy and reedy, which is just a limit of my gifts, as I’ve discussed before, but I enjoy the guitar solo, I really love the “Homeland” altro melody, and I liked being able to use those voices as part of a soundscape that is evocative, I hope, of my feelings about that senseless slaughter. And I do also think that it adds some value to have a piece that is brutally-critical of the peculiarities of the Great War (“in rank and in file, and in mud and gas and in trenches they fell, to bayonets and barbed wire, and shrapnel and stupid generals, and artillery and shell”) while being free from the taint of a broader anti-war sentiment. 

Notes:

  1. Cf. Mesa Engineering, Interview with John Petrucci, c. 1995, http://www.mesaboogie.com/US/Artists/Assets/interview.html (last visited 12/1/2014) (“[t]he last album we did, Awake, I used two tracks of the Rectifier, then two tracks of a Mark IIC … and then[,] live[,] I try to emulate that, not by using all the different amps, but just by different effects and stuff like that. At one point I was using four different amps through the Amp Switcher, two Tri’s a Mark IIC and a Rectifier … It was a cool sound, there was a definite cool combination of all these different things going on at the same time”).
  2. Tracks can multiply quickly; for example, the guitar solo was originally improvised whole, but I then learned it and tracked four more takes of it with differing articulations to preserve options going into the mix. So suddenly you have five tracks of nearly-identical lead guitar, which shrink to one mono stem for the mix. The distorted guitars sprawled over four tracks which were then panned and bounced to one stereo stem for the mix.
  3. I am less enthusiastic about Minimal Systems’ Stereo Buss Compressor, which I find a little too “pumpy.”
  4. Cf. Mike Senior, Use Reverb Like A Pro: Part 2, Sound-on-Sound Magazine, Aug. 2008, http://www.soundonsound.com/sos/aug08/articles/reverbpart2_0808.htm (last visited 12/1/2014).

The glorious dead

Poppy image

The Great War began a century ago this year; it finally ground to its ignoble end 96 years ago today, the guns falling silent at the  eleventh hour of the eleventh day of the eleventh month. Upon its altar had been sacrificed, we are told, 9,911,000 soldiers; “the generals sat,” as Roger Waters would later observe, “and the lines on the map flew from side to side.” What was gained? What might those brave men (and, indeed, women, for one dares not count the civilian toll) have accomplished?

Requiem aeternam dona eis, Domine; et lux perpetua luceat eis. Man that is born of a woman hath but a short time to live, and is full of misery. He cometh up, and is cut down, like a poppy; he fleeth as it were a shadow, and never continueth in one stay.  In the midst of life we are in death: of whom may we seek for succour, but of thee, o Lord, who for our sins art justly displeased? Yet, o Lord God most holy, o Lord most mighty, o holy and most merciful Saviour, deliver us not into the bitter pains of eternal death. Thou knowest, Lord, the secrets of our hearts; shut not thy merciful ears to our prayer; but spare us, Lord most holy, o God most mighty, o holy and merciful Saviour, thou most worthy judge eternal, suffer us not, at our last hour, for any pains of death, to fall from thee. Merciful God, the Father of our Lord Jesus Christ, who is the resurrection and the life; in whom whosoever believeth shall live, though he die; and whosoever liveth, and believeth in him, shall not die eternally; who also hath taught us, by his holy Apostle Saint Paul, not to be sorry, as men without hope, for them that sleep in him: We meekly beseech thee, o Father, to raise us from the death of sin unto the life of righteousness; that, when we shall depart this life, we may rest in him, as our hope is this our brother doth; and that, at the general Resurrection in the last day, we may be found acceptable in thy sight; and receive that blessing, which thy well-beloved Son shall then pronounce to all that love and fear thee, saying, Come, ye blessed children of my Father, receive the kingdom prepared for you from the beginning of the world: Grant this, we beseech thee, 0 merciful Father, through Jesus Christ, our Mediator and Redeemer. Amen.