Party like it’s 1899: Dodd for President, 2016

A week ago, with Governor Jindall’s admission of his candidacy, I promised that if one more Republican ran for President, I, too, would seek the GOP nomination. I’m a man of my word. Given Governor Christie’s entry into the race three days ago, I hereby announce my candidacy: I will walk for the Presidency. (My heart, like Governor Christie’s, aches at the mere thought of running.) I am taking this step partly because I love my country, but mostly because everyone else is doing it and I don’t want to be the last Republican in America who isn’t. Besides, if there’s one principle on which we can all agree in our divided nation, it’s this: You all want to be sarcastically told what you’re doing wrong by a guy with a plummy British accent.

Now, admittedly, I will never be President; as a naturalized American, I can’t take office: “No person except a natural born citizen … shall be eligible to the office of President….” So what’s the point of seeking the nomination? For one thing, because far too many Americans don’t know the meaning of the word “quixotic,” and it’s about time that we changed that. But seriously, folks, I have two answers to that. First: If you’re fed up with the capacity of a functioning government to hold a knife to the jugular of American freedom, perhaps a constitutional crisis is just what the doctor ordered? Second, and more to the point, my ability to seek the nomination paired with my inability to take office makes my choice of vice-president—well, let’s just say, in the immortal words of former-Governor Blagojevich, “a fucking valuable thing.” Cash donations to my campaign will not hurt your chances. Wink wink. 

Enough about me; let’s talk about the issues. President Roosevelt promised a new deal; President Hoover promised a chicken in every pot; the first President Clinton promised a blue dress in every winsome girl’s wardrobe; what can you expect from President Dodd?

* * *

For today, I won’t want to bore you with my plans to veto any piece of legislation that lacks a sunset clause, period; and do you really want to sit through a long-winded speech about ending corporate welfare, a flat-rate income tax (flat percentage, mind you, not flat dollar), repealing the Seventeenth Amendment, retroceding most of DC to Maryland, getting the federal government out of its wars on drugs, law-abiding gun-owners, and education, imposing the death penalty on people who don’t use the oxford comma, a second season for “Caprica,” and so on? You can xerox Newt Gingrich’s manifesto and stick my name on it for yourself. 

But I do want to talk to you about the issue that, in my view, matters the most. Listen: We’ve had some fun in the last few paragraphs, so I think I’ve earned your indulgence to be serious—not too serious, I promise—for a few minutes. Like all naturalized citizens, and like those of you who have served our nation in the armed forces or other capacities, I took an oath to support and defend the Constitution. That oath now demands a few words, because I fear that the Constitution and indeed the very rule of law that it presupposes is under siege.

The distinguishing mark of the anglosphere is its commitment to what we have called “the rule of law.” Lon Fuller thought that the rule of law meant that “the acts of a legal authority toward the citizen must be legitimated by being brought within the terms of a previous declaration of general rules,” and that’s good enough for me. But it’s a little abstract. Concretely, what the rule of law entails in America is this: There is no law binding upon Americans that was not ratified by Americans, and the law that was ratified by Americans rules America. We ratified a Constitution, and we elect a Congress and a President; Congress makes statutes which are executed by and govern the president, and both (and the states besides) are governed by the authorities and limits of the Constitution. For example: The people decided that Congress would have the power to impose federal taxes; until we change section 8, Congress, and only Congress, has that power. Likewise, when Congress says that the tax rate on widgets is x%, it’s x% until Congress says otherwise. Or, to take another example, we decided that Congress, even when otherwise acting within its authority, would not have the power to abridge the freedom of speech; until we change the First Amendment, Congress can’t do that—and neither, by law and by custom, may the states or the federal government more broadly.  

Sometimes, however, they try. And when they do, Americans are apt to sue. For example, when the District of Columbia infringed Richard Heller’s right to keep and bear a handgun—notwithstanding that we had decided that they can’t do that, and have never authorized a change in the second amendment—he sued. Unfortunately, few cases are as straightforward as Heller. Some of these restrictions on what government can do—we call them “rights”—are not necessarily apparent on the face of the text, and this requires that courts interpret the Constitution. But the rule of law demands that constitutional interpretation, of its very nature, be backward-looking: It asks not “should Congress be able to do x,” but “have the people, through the Constitution, prevented Congress from doing x?” If the answer is yes, the courts are obliged to say “you can’t do that,” even if a majority today really wants to (or vice-versa). The answer is found in the bone of text and the flesh of tradition, an approach exemplified this year in cases such as Johnson v. United States and the Kerry v. Din plurality.

Any criticism of judges must (but rarely does) recognize that the dictionary is not a fortress, and that words can be ambiguous. My example is United States v. Santos, in which the Supreme Court tackled a statute that referred to the “proceeds” of an enterprise—but did that mean net proceeds or gross? There was no answer to be had in the word itself. Nevertheless, suppose that the statute had specified “net proceeds,” and my administration decided to start enforcing criminal penalties against those who used not only net proceeds, but gross proceeds? Would we think that authorized by the statute, and thus consistent with the rule of law?

Or imagine that Congress authorizes a national sales tax on wine of five percent. If my administration chooses to apply that tax to beer, or to tax wine at six percent, is that consistent with the rule of law? No. But listen: Put down your glass of wine (or beer) and ask yourself: Why not? Because the law is in words and words have meaning. Beer isn’t wine; that the statute authorizes and obliges me to tax a given liquid at 5% doesn’t authorize me to tax any liquid at 5%, or that liquid at a different rate. The actions that the statute authorize are defined and bounded by the meaning of its the words. Could Congress define “beer” as wine for purpose of the statute? Sure. Could beer count as wine if there were a longstanding common-law equation of wine with beer? Sure. But absent such things—and without denying that sherry presents a more difficult case—it is an assault on the rule of law to argue that the word “wine” means something beyond the range of meanings foreseeable to the drafters.

The same goes for the Constitution; its guarantees are empty if its words are protean. (The’s a ten-dollar word for “can mean anything.”) Think about the right to a jury trial, for example. Precisely because the dictionary is not a fortress, that right is meaningless unless the word “jury” has definite content: If my administration can define “jury” as anything it likes, including a bench of military judges whom I hand-pick, in effect, you have no right to a jury trial. Similarly, our attempt to safeguard that right by enacting Constitutional text protecting it would be thwarted if that definite content is anything other than the meaning that the word was understood to encompass at the time that we enacted it: If society’s evolving consensus decides that it’s more efficient to have a jury with only three people, and if that can pass muster because courts think that rights must be kept up-to-date with current fads, in effect, you have no right to a jury trial. The hard truth is this: The rule of law is an empty promise if it does not entail what we today call “originalism.”

All to often, however, the courts have placed the rule of law in jeopardy rather than upholding it, whether by inventing restrictions on Congress that we never approved, by failing to enforce those which we did, or by discovering powers of Congress that we never approved, or by failing to allow it those which we did. Consider Korematsu. It does not matter a whit if an opinion poll might have found broad public support for the Japanese-American internment; the law was clear, internment violated it, and the court was wrong to allow it, even if the public might have approved. Or consider Brown v. Board of Education. Imagine that the justices, fearing the disapproval of a public that perhaps felt differently, had come out the other way; the law was clear, segregation violated it, and the court was right to strike it down, even if the public might have disapproved. Judicial failure to enforce the law because the law is inconvenient to the government or unpopular with the public, or vice versa, threatens the rule of law.

In just the same way, judicial corruption or invention of law, perhaps because the law as it exists is inconvenient to the government or unpopular with the public, also threatens the rule of law. Consider Roe v. Wade. Should there be a right to “choice”? A right to “life”? In dubiis, libertas? America was and remains divided on abortion, and so it is little surprise that we have not been able to agree on a constitutional answer that settles the question. Recalling that the rule of law demands that constitutional review be a past-tense exercise in which judges ask whether Americans have enacted a particular right rather than a present-tense exercise in which judges ask whether there should be such a right, the answer in Roe should have been “no law on that one. Figure it out for yourselves.” We should think of cases such as Furman v. Georgia and its progeny and Obergefell v. Hodges and its antecedents as further examples in the same category. America was and remains divided on the death penalty; she is less and less divided on gay marriage, nothwithstanding that it was, for most of us, an unthought thought just twelve years ago. But the idea that a previous generation of Americans have settled this question with an answer that must, perforce, have lurked unnoticed in the text yon these many years is preposterous and at odds with the rule of law. The answer in such cases must be: “No law on that one.” (This is particularly obnoxious in cases such as Obergefell or Kennedy v. Louisiana where the court pretends that the Constitution demands a result on which legislatures were rapidly converging, which, even for those who support the policies at issue, leaves timing as the sole entry on the “benefit” side of the ledger, with no offsetting diminution of cost.)

When the courts crash through the limits of their proper lawsaying role and exercise what Justice White called “raw judicial power, … an improvident and extravagant exercise of the power of judicial review,” when they set aside the text and tradition to tell Congress, the President, or the states that they may do something that the Constitution does not allow or even forbids  (Morrison v. Olson, for example, Hamdi v. Rumsfeld, Central Virginia Community College v. Katz, or NFIB v. Sebelius) or may not do something that the Constitution allows  (United States v. Stevens, for example, Lee v. WeismanStenberg v. Carhart, or United States v. Virginia), the rule of law suffers. The rule of law is not a token to be bartered lightly for the temporary convenience of what one generation wants—let alone of an intellectual elite that thinks it knows what that generation wants.

With this in mind, my priority as President will be vigorously safeguarding, tending, and extending the rule of law by attentively, assiduously, and aggressively filling judicial vacancies with women and men who understand the proper role of the judiciary. (In the event of a Supreme Court vacancy: Diane Sykes, call your chambers.) I cannot promise you that I will nominate judges with whose rulings you will always agree. The dreaded phrase “judicial activism” all to often means nothing more than “I don’t like it.” But I do promise you that I will nominate to the bench only those whose proven track-record gives us confidence that they understand the proper role of the judiciary—judges who will assertively protect rights that we have protected in the Constitution and will not bind the people’s hands with made-up rights that that we have not (yet) protected in the Constitution; who will strike down popular legislation that the Constitution does not allow as fearlessly as they uphold unpopular legislation that it does. I will aggressively lobby Congress to abolish the out-of-control U.S. Court of Appeals for the Ninth Circuit, along with all its judgeships, and their replacement with new 12th and 13th circuits (along with, incidentally, a new Court of Immigration Appeals to alleviate the docket pressure on our courts, in which such cases composed, in 2014, nearly 90% of agency appeals).

* * * 

This weekend we celebrate the anniversary of our nation’s momentous decision to break from King George III’s British empire. Our forefathers did so not simply because they thought that George’s decisions were mistaken, but because they believed that Americans should make those mistakes; it wasn’t about whether the decision was right or wrong but who decides. Shall we rule ourselves, given that we may sometimes rule poorly? Or shall we be ruled by a king, given that he may sometimes rule wisely? Given fellow-colonists who stubbornly refused to convert to your opinion, would you have instead sided with the crown had King George promised you same-sex marriage? Or abolition of the death penalty? If so, you and I have different ideas of what we are celebrating this weekend.  

My first job as your President is your freedom—to protect America from foreign threats and to get the government out of your way so that you can follow whatever lawful pursuits you like. But my job is also to keep the promise  that we made ourselves at the time of the founding: That Americans will be ruled by the laws of Americans, not the guesses of weak judges or the preferences of masterful judges. If it is to remain our “proud boast” that we are a nation of laws, not of men, as it has been since the Massachusetts Constitution of 1780, we must have originalist, textualist judges who honor what the people have already decided and otherwise leave the people free to decide for ourselves.

Thankyou—and may the United States of America bless God,  as we hope that He will in turn bless us.

In re Laudato si

Sometimes the day’s gospel reading is so apropos that you’d think it planned. Today, we hear from St. Mark, where we find disciples fearful of the weather. They cry out in terror; perhaps one of them composed a short encyclical about the storm, I don’t know. What does our Savior say to them? “Why are you afraid,” he asks them; “do you not yet have faith?”

Do you not yet have faith? It is a fitting rebuke to Laudato si, the pseudo-encyclical released this week in which Francis, the incumbent bishop of Rome, discusses “ecology.” To be sure, some conservative Catholics—unable to free themselves from the reflexive ultramontanism learned under previous popes, 1—have embraced Laudato. That, I think, is error, although it is surely a more laudable and noble error than the breathtaking cynicism and opportunism of reform Catholics who, having insisted for five weeks short of 47 years that an encyclical is nothing more than a papal op/ed, now ascribe to this one a level of authority exceeding scripture itself. Others, however, have been more chary. I think that it’s important to be clear about why Laudato is a dead-letter; why that is, Catholics may and should ignore it.

That task is necessary because some critics have floated flimsy and problematic justifications for ignoring it. Catholics may not ignore an encyclical because we don’t like the pope who promulgates it or because of some alleged formal defect; nor may we dismiss an encyclical out-of-hand simply because we disagree with it on the merits. Nor may we dismiss it because, as some have said, because “it” wasn’t given ex cathedra. (A dangerously-imprecise use of the term, incidentally.) It wasn’t, of course, but the notion that all teaching that isn’t is optional is a dangerous and erroneous notion. 2 That’s a gateway to cafeteria catholicism.

Instead, the reason that Catholics may and probably should dismiss this encyclical is because of its subject-matter. Technically, encyclicals themselves do not bind; that is a category-error. Just as it is not the opinion of the court itself that binds, the ink and paper, but rather the holding (and arguably, to some extent, dicta) contained within that opinion, 3 an encyclical is just a form, a vehicle. What can bind, what is capable of commanding assent of one degree or another, is the papal magisterium, the teaching authority, which may be exercised in an encyclical letter just as it can be in any other form. That distinction is important because while form may imply intended character (when we read a document labelled “apostolic constitution,” for example, for example, we expect it to deal authoritatively with some important matter) any question of assent must pertain to teaching, not form. To ask whether a given statement in a given document is binding to some degree presupposes that the statement is teaching, which in turn presupposes magisterial competence to promulgate teaching. And popes have magisterial competence over only two categories of question: Faith and morals. 4 Ineffabilis Deus, for example, addressed faith; Humanæ vitæ, morals. We are able to meaningfully discuss the extent to which they are binding because, as teaching, they have the capacity to bind. By contrast, a pope’s offhanded comments about the weather, baseball or his favorite food do not command assent, not because he makes them in a particular forum, but because they are not magisterial statements.

A simple example will illustrate. Imagine that a private letter in which a pope expresses his opinion on the designated-hitter rule is leaked. Does it command assent? No, because the pope has no teaching authority pertaining to baseball. Now suppose that the pope publishes the same text as an op/ed in the Times. Does it command assent simply because it is now a public document? No. Now suppose that the pope takes the same text and slaps the label “encyclical” on it, topping-and-tailing it with the various formularies thereof. By doing so, by upping the level of solemnity, has the pope created for himself teaching authority over baseball?

With these considerations in mind, it is clear why dissent from Humanae vitae can’t be analogized to disagreement with Laudato—indeed, why it is a category-error to speak of “dissent” from Laudato. “Dissent” is predicated on the existence of teaching; one can dissent on the question of the immaculate conception, for example, only because Ineffabilis Deus has promulgated binding teaching on the subject. Before 1854, there was no teaching and so no possibility of dissent. The vital question is not form, or even intent, but content. The “baseball encyclical” has no more authority that Justice Blackmun’s paen to the game in Flood v. Kuhn—dicta, nothing more. To speak of assent or dissent, of agreeing or disagreeing with Francis is to miss the point: There is nothing binding to which one might assent vel non.

There are, to be sure, counterarguments, and most of them go to the inescapable truth that the word “morals” has some play in the joints. Nevertheless, the word “morals” must have some content—irreducible scope and inexceedable limits—or the petrine teaching authority can be expanded or contracted at will. And it would further seem to follow that we should be wary of logical gymnastics that separate the magisterium from that skeleton. If “morals” is wholly protean, if it is able to mean anything one wants it to mean, the upshot is that the petrine ministry is not actually limited to morals—it directly reaches any issue. Similarly, if we say that it reaches the morality of actions that are concededly beyond the direct reach of papal teaching authority, we get the same result: An unlimited papal authority to reach any issue, just through the back door. It seems to me that if “faith and morals” is meant to be a limited jurisdiction, we can’t interpret “morals” in a limitless way. The surest guide to the proper scope of “morals” is tradition: What kind of moral issues has the Church always understood the magisterium to reach? 5 Could (name any more pope than a century ago) have issued this document without raising eyebrows? If the answer is no, there’s probably a problem.

Today, as always, Jesus would say to our political anxieties about forces beyond our control: “Why are you afraid? Do you not yet have faith?”

Notes:

  1. See Simon Dodd, The New Ultramontanes, http://simondodd.org/blog/?p=1318.
  2. Cf. Humani generis 20; Lumen gentium 25.
  3. Cf. Simon Dodd, Ordinatio sacerdotalis and its limits, http://www.simondodd.org/blog/?p=1359, n.6 and accompanying text.
  4. See, e.g., 1983 CIC 750 § 2.
  5. Tradition, custom, and usage are what give definite form and limits to amorphous, general propositions. Take the bible, for example: Five centuries of protestantism have demonstrated that you can create several completely different religions out of its text. Only by remaining within the tradition of the Church can we know that the “Christianity” that we practice is the same Christianity our ancestors practiced, founded on the apostolic faith rather than upon “the bible.”

Huge news out of Virginia

“Sweet Briar College will stay open next academic year under a mediation agreement announced today by the state attorney general’s office,” and its “president will resign as will at least 13 members of the college’s current board of directors under the agreement, which will be presented Monday to Bedford County Circuit Judge James Updike for approval.”

Thus reports the Richmond Times-Dispatch this evening; my previous coverage appears at this link.

Tuesday A.M.

Musicam novam præsento. This song pushes the analog emulation about as far as I think that I can realistically go. For those who like to know what’s going on behind the curtain, let’s dig in.

A few brief words on tracking, which took place over four lunchtimes and evenings last week. Most of the synths are VSTis, but I snuck the K2000 in there in a few places—you can hear it under the first guitar solo, for example, and trading notes with the sax in the altro. Speaking of the solos, both were winged as placeholders, the first on a strat and the second on my signature JPM 335; I kept meaning to retrack them, but in the end I liked them just as they were, “warts n’ all,” as they say, so I just went back and punched in to fix a few wrong notes. The vocals were challenging; you can hear that I still struggle to stay on pitch, which practice is helping, and I just don’t have a very appealing timbre to my voice, which can’t be helped.

Coming out of tracking, I had 89 tracks (I generally prefer separate tracks to multiple takes within a track), which were immediately cut down to 53 going in to post, and whittled down, after comping and combining, to 34 to actually work with. Some of those shrank to stereo stems; others morphed a little. The piano (for the record, Hephaestus’ recent Steinway Grand 3), for example, has a nice little trick to simulate a piano mic’d in three places: I triplicated the track, panned one hard left with a eq curve that turned down the treble, one panned hard right with an eq curve that turned down the bass, and the third was pushed out to 9′ away using TDL’s nifty Proximity plugin, then the whole smash was bounced down to one stereo track. Every track, whether VSTi or mic’d, was routed through VoS’ Tessla Pro (for an analog pre emulation) into VoS’ Ferric (to emulate recording to multitrack tape), quite hot, and printed as a stem.

I then mixed it as 22 channels into four busses (Drums/bass, Keys, Egtr, Agtr, Vox). Each stem was fed through Ferox into Sonimus’ Britson console emulation. Instead of pushing Ferox‘s input to emulate tape saturation, I kept the meter well within the green; the idea was to emulate the sound of each channel being fed from tape, just a little hiss and wobble per channel, and these artifacts, along with the saturation from Britson, gradually accumulate in the big picture. (There is an obvious flaw in that strategem, but it’s unavoidable.) Because I do a lot of work to get everything straightened out in post, few tracks required attention at this point, but where compression was needed, I used my usual go-tos: Minimal Systems’ Punch (1176-style), VoS’ Thrillseeker LA (LA2A-style), and Sonimus’ SonEQ. (Each buss also had the Lindell 6X-500CM that Computer Music magazine recently gave away and SlickEQ for finishing touches.) Reverb sends came from MS’ Airwalker and Bootsy’s Epicverb; Voxengo’s Stereotouch was used on the cello; the venerable Classic Delay is  lurking in the background in a few places, too.

I want to emphasize that none of the plugins that I’ve mentioned are expensive; most are free. The developers have put an enormous amount of work into these for little or no money, and I am profoundly grateful to them for making it possible for hobbiests like me to do whatever it is that I’m able to do.

Reflections on the soteriology of the Epistle to the Hebrews

We consider the soteriology of the Epistle to the Hebrews, traditionally attributed to St. Paul. (This is probably the last-but-one of this semester’s assignments to be published here.) We shall look briefly at the arguments that Hebrews gives for the superiority of Christ’s sacrifice, the effect in an individual’s life of this doctrine, and why there can be none other like it. In an important way, then, this assignment touches the core question at the heart of Christianity: “Why,” as the title of St. Anselm of Canterbury’s famous work puts it, “the God-man?”

At Calvary, a cross became an unwitting altar when the Son of God sacrificed Himself upon it for the sins of the world. 1 Hebrews gives many reasons for the primacy of this sacrifice. Some are given by allusion. Jesus is more worthy of honor than Moses (and impliedly all others), because the founder of a house is more honorable than the house itself 2; the more valuable the offering, the greater the sacrifice. Jesus is the true and most excellent high-priest 3; the right sacrifice should be offered by the right priest. Indeed, Jesus is the high-priest who presides over a new and more excellent law of sacrifice which has overtaken the old. 4

But the author 5 grasps the nettle firmly in chapter nine:

When Christ came as high priest of the good things that have come to be, passing through the greater and more perfect tabernacle …, he entered once for all into the sanctuary, not with the blood of goats and calves but with his own blood, thus obtaining eternal redemption. For if the blood of goats and bulls and the sprinkling of a heifer’s ashes can sanctify those who are defiled so that their flesh is cleansed, how much more will the blood of Christ, who through the eternal spirit offered himself unblemished to God, cleanse our consciences from dead works to worship the living God. For this reason he is mediator of a new covenant: since a death has taken place for deliverance from transgressions under the first covenant, those who are called may receive the promised eternal inheritance. 6

What is the point of all this? One answer is given by Joseph Ratzinger, with characteristic insight:

In Jesus’ Passion, all of the filth of the world touches the infinitely-pure one, the soul of Jesus Christ and, hence, the Son of God Himself. While it is usually the case that anything unclean touching something clean renders [the latter] unclean, here it is the other way around: when the world … comes into contact with the infinitely-pure one—then he, the pure one is stronger … [and] the filth of the world is truly absorbed, wiped-out. And transformed in the pain of infinite love. 7

That is an elegant, theologian’s answer, but it is perhaps quite abstract. Hebrews, by contrast, gives a blunt and unsettlingly-concrete answer: Blood. “According to the law almost everything is purified by blood, and without the shedding of blood there is no forgiveness.” 8 Last term, we reflected on the “why” question, noting that although “God had created mankind after his own image and likeness, … man was destroyed by the fall, which left us desperate and undone,” 9 such that because of Adam’s sin, “we, his descendants, come into the world deprived of sanctifying grace and inherit his punishment, as we would have inherited his gifts had he been obedient to God.” 10 We were left “entirely unable to redeem ourselves,” and for the reasons given by St. Anselm’s Cur Deus Homo, “what [was] needed [was] something impossible: A person both God and man.” 11 By sending His Son as both sacrificing priest and sacrificial victim, God solved this problem.

With these observations, it becomes straightforward to answer the question of why there cannot be another sacrifice like that of Christ: “Because sin is an infinite offense against God, and only God could offer infinite satisfaction … Son of man, [He] could suffer for the sins of man. Son of God, He could offer to His Father full and entire satisfaction according to the strict rigor of justice.” 12 Only God could accomplish this. And God has no need of an encore: “The ‘Lamb of God’ took upon himself the sins of the world and wiped them away … Reconciliation had been accomplished.” 13

It is equally straightforward to assess the effects of that sacrifice in a person’s life today: In my Who is Jesus piece, quoted above, I proposed that the titular “Good News” of the Gospel boiled down to this: “[W]e had separated ourselves from God, [yet] He nevertheless so loved us that he sent to atone for our sin His only son, Jesus the Christ … who offered himself as an atoning sacrifice in order that by his wounds, those who confess and follow him may be restored to the company of heaven.” Because of what He did on that day, salvation is offered to us. 14

It is thus appropriate that we reflect on this hot on the heels of the Easter Triduum, when we recollect that sacrifice, a sacrifice indeed, “though it had neither fire, nor logs, nor was offered many times, but had been offered in blood once for all; he shows that the ancient sacrifice also was of this kind, was offered once for all in blood.” 15 It is in the Triduum above all that we recall the cross,

for in that solemn and lonely and unapproachable hour of the cross is the final fulfilment of the word of the herald on the banks of the Jordan, “Behold the Lamb of God, that taketh away the sin of the world !” That phrase … could have but one significance in the ears of the men who heard it. This was the voice of a Hebrew  prophet speaking to Hebrews, and when he spoke of the Lamb taking away sins, they had no alternative other than to think of the long line of symbolical sacrifices which had been offered, and which they had been taught shadowed forth some great mystery of Divine purpose whereby sin might be dealt with. 16

This is a great mystery, and is properly so-called, for “we cannot comprehend how a God-man became a victim for us, and offered for our ins an atonement absolutely equal to the offense.” 17 We have been purchased at a great price, tendered in “the precious blood of Jesus Christ.” 18 In consequence, we have this hope: “Christ, offered once to take away the sins of many, will appear a second time, not to take away sin but to bring salvation to those who eagerly await him.” 19

 

 

 

 

Notes:

  1. Compare Jn 10:18 with, e.g., Abbé Luche, The Catechism of Rodez Explained in the Form of Sermons 428 (1899).
  2. Heb 3:1-3
  3. 4:14, 5:1-6; 6:19-20; 7:26-28; 8:1-6
  4. Heb 7:11-12; 8:7-9; compare Heb 7:18 with Heb 10:1-4. This analytic approach is not original to me; St. Thomas Aquinas’ commentary on Hebrews similarly reflects that its author, “[h]aving proved the excellence of Christ’s priesthood over that of the Levitical on the part of the person,” then “proves the same on the part of the priesthood itself,” and ultimately, “[h]aving proved that Christ is a high priest and, consequently, a minister of holy things, but not according to the Old Law, … that He is a minister of greater and better things than they had been.” Thomas Aquinas, Commentary on the Epistle to the Hebrews, nos. , 377, 390, available at http://dhspriory.org/thomas/SSHebrews.htm#81.
  5. While I reject the so-called “higher criticism” as rotten from root to branch, doubts about the attribution of Hebrews to St. Paul did not begin with the Critics. Even some Church Fathers expressed doubt. Nevertheless, I would pose these questions: Whence came it to be called the Epistle to the Hebrews and attributed to St. Paul? It lacks the letter-style introduction of other writings (Pauline and otherwise). One possibility is that Hebrews originally had such an introductory paragraph, now lost, that claimed Pauline authorship, whence both the characterization and the attribution.
  6. Heb 9:11-15 (emphasis added).
  7. 2 Joseph Ratzinger, Jesus of Nazareth 231 (2011).
  8. Heb 9:22. These are themes that I developed at greater length in this presentation.
  9. Simon Dodd, Who is Jesus, and what did he do?,” 4 MPA __ (2014) (internal quotation marks omitted), available at http://simondodd.org/blog/?p=1623.
  10. Baltimore Catechism q.57.
  11. Dodd, supra.
  12. Manual of Christian Doctrine 97-98 (1919).
  13. Ratzinger, supra, at 230.
  14. Heb 10:19, 23.
  15. St. John Chrysostom, Homily 15 on Hebrews, http://www.newadvent.org/fathers/240215.htm.
  16. G. Campbell Morgan, The Purposes of the Incarnation in 3 The Fundamentals: A Testimony to the Truth 294 (Eds. Torrey & Dixon), available at http://ntslibrary.com/PDF%20Books%20II/Torrey%20-%20The%20Fundamentals%203.pdf
  17. Manual, supra, at 97.
  18. Ibid.; 1 Cor 6:20, 7:23.
  19. Heb 9:28.

Iesus, imago Patri

When Christians talk about God, we are apt to focus on His love. We must “keep []ourselves in God’s love,” 1, and St. Paul assures us that nothing will be able to separate us from that love. 2 Yet there is more: God is love; so St. John tells us in 1st John 4:8. “These words,” said Pope Benedict XVI , “express with remarkable clarity the heart of the Christian faith: the Christian image of God and the resulting image of mankind and its destiny.” 3 But what is the character of that love? How are we to relate to an abstract concept possessed as an attribute by (for want of a better word) an entity that no one has ever seen? 4

Humans are inevitably anthropocentric in our thinking, and we tend to relate to the world around us by anthropomorphizing things. Many primitive and ancient religions, such as the Romano-Grecan “gods” demonstrate this propensity. And we are limited in our thinking: When we seek to understand abstract concepts, we seek to ground them in concrete experience, or at least to approach them through analogy and metaphor to that which is familiar. Such is the purpose of a parable, for example. 5

Unsurprisingly, then, the God who made and knows us “cho[oses] to relate to his creations in ways in which one might expect the creations to be able to understand.” 6 Accordingly, He sent to us His Son, “the image of the invisible God, the firstborn of all creation.” 7 And so, in that famous formulation, “the Word became flesh and dwelt among us, and we have seen his glory, glory as of the only Son from the Father, full of grace and truth.” 8 To be sure, we see that there are other divine attributes that are claimed of Jesus, as indeed Jesus Himself claimed them. 9 He was full of grace and truth. But above all, Jesus “bore witness to God’s love for us,” 10, a “perfectly trustworthy love, a love capable of triumphing over death.” 11  “’It is Christ … who fully discloses man to himself and unfolds his noble calling by revealing the mystery of the Father and the Father’s love.’” 12

If we wish to understand God’s love, then, we are most apt to understand it by looking at the life, ministry, and death of Jesus Christ, a mirror to us of the Father’s love. Jesus reveals God to us by giving us a representation of the Father and His love for us in concrete, human terms, in things to which we can relate, and we understand what God is like by seeing the example of Jesus’ actions. “In this contemplation the Christian discovers the path along which his life and love must move.” 13

Notes:

  1. Jude 1:21.
  2. Rom 8:38-39.
  3. Encyc. Deus caritas est, no. 1, 98 AAS 217 (Benedict XVI,  2005).
  4. See Jn 1:18; 1 Jn 4:12.
  5. See Simon Dodd, A brief note on the notion of a parable, 4 MPA __ (2014), available at http://simondodd.org/blog/?p=1529.
  6. Dodd, The tactility of the Church, 2 MPA 62 (2012).
  7. Col 1:15.
  8. Jn 1:14.
  9. Matthias Premm, Dogmatic Theology for the Laity 134-36 (1977).
  10. Thomas Stegman, [Commentary on] Second Corinthians 287 (2009) (emphasis added).
  11. Encyc. Lumen fidei, no.4, 105 AAS 555, 557 (Benedict XVI & Francis I, 2013).
  12. Encyc. Veritatis splendor, no. 2, 85 AAS 1133, 1134 (John Paul II, 1993).
  13. Deus caritas, supra note 3, no. 12.

Stewardship and legacy: Sweet Briar and the future of women-only higher education

On July 7, 2014, Jo Ellen Parker bade farewell to Sweet Briar College, a women’s liberal-arts college near Lynchburg, VA that she had helmed since 2009. “I remain confident in the direction we are moving,” she wrote; “I leave knowing that Sweet Briar is poised to take another step toward an inspiring future.” 1 The college’s Board of Directors signed a soaring encomium to her tenure, situating it among the “generations of talented, dedicated, and committed women and men” who had “nurtured” and sustained” Sweet Briar, “a handful of leaders whose selfless dedication to its core values and educational mission has seen the college through the challenges of war, depression, financial constraints and social change … We who share your deep affection for Sweet Briar’s people, traditions, and values are profoundly greatful.” 2

Less than eight months later, the same board demonstrated the depth of their affection by signing the college’s death warrant. 

I.

Sweet Briar was founded in 1901 on the bequest of Indiana Fletcher Williams. Like many women’s colleges, it has faced financial difficulties in recent years; how severe is a contested and vexed question. The father of a 2007 alumna told the Washington Post that there were “no visible hints of financial distress on campus,” and recent articles on struggling colleges had not listed it. But on March 3, 2015, the president and board announced, out of the blue, that the college would close at the end of this academic year. Their failure to make serious efforts to save the college has won them a unanimous no-confidence motion from the facultymultiple demands for their resignations, protests outside the President’s house, and landed them as defendants against a lawsuit filed by the county, to say nothing of the inevitable lawsuit from the alumnæ, à la the Wilson College case. Students captured the mood in unfurling a banner over Gray Hall: Sic semper tyrannis. (“Thus always to tyrants,” the putative war cry of Brutus when assassinating Caesar and the state motto of Virginia.) Ask not for whom the bell tolls.

The administration insisted that declining enrollments and financial problems doomed the college, but that’s hard to take seriously. If admissions were the problem, why did they fail to hire a replacement Admissions Director following Gretchen Tucker’s departure in 2013? 3  If money was the problem, what are we to make of the failure to make a capital campaign, the college’s serious endowment, 4 and relatively luxurious amenities? The administration’s failure to try running the college as a more modest operation (among other options) rather than peremptorily closing it is baffling.

But it is more than that: It is scandalous, because women-only higher education (hereinafter “WOHE”) is a precious, scarce, and dwindling resource. Diminution of that resource is equivalent to destroying a grade-1 listed building or an old book. Seen from that perspective, the board and interim president James F. Jones betrayed their donors; they betrayed their applicants; they betrayed their alumnae; they betrayed their students; and above all, they betrayed the legacy that they were appointed to steward. 

Sweet Briar’s story may not be over. The county’s lawsuit will go forward even if others decline to file. (Don’t count on that; in America, anger hardens swiftly into litigation.) But whatever its fate, I must voice strong objection to one analysis of how we got here, because it has broader implications for the future of WOHE: Sweet Briar was forced to close because the terms of its endowment prevented it from going co-ed. That argument presupposes that WOHE is a doomed anachronism, a relic, an anchor that must be slipped if a school is to survive in “the modern world”—whence, because Sweet Briar could not, it died. And it is false from its roots to its leaves.

For one thing, Sweet Briar didn’t die, it was put down. It was not forced to close because it failed, it closed because its board and President concluded (or rather, speculated) that it would fail. For another, applications to women’s colleges have kept pace with applications to co-ed colleges in the last decade—hardly a sign that the model no longer retains market viability. 5 But the most important reason why that theory is false and must be resisted is because of its broader implications. Even if WOHE occupies a narrow market niche (we are told that north of 95% of potential recruits will not even consider a women’s college 6), it is at least a valid and arguably (and in my view) an important niche.

II.

From a purely descriptive standpoint, there are women who want WOHE. Set aside why for a moment. It doesn’t matter why; they exist, they have a legitimate viewpoint and desire, and the ground is disappearing out from under them as single-gender institutions either close or co-ed. Are there enough women who want WOHE, when added to those who can be talked into it, to enroll 15,000 students a year at each college in the Women’s College Coalition? Probably not. Most women’s colleges, however, are small affairs (another part of their appeal to many applicants, incidentally 7) so the better question is: Are there enough women who want WOHE, when added to those who can be talked into it, to enroll 500 students a year—and is that enough? Maybe. It depends on the college; could you run Sweet Briar as-is on 530 students? Maybe. Could you run a pared-down Sweet Briar on 530 students? Maybe. Could you run a different college, one with additional revenues from Grad or Distance programs, on 530 (campus) students? Maybe. And, in a different sense, isn’t that enough? To be sure, no one’s getting rich doing that, but it meets an under-served and legitimate need (an ever-less-served need), providing a valuable service that would not otherwise be available. Is that a worthwhile endeavor? I should think so.

It behooves us to go a little further: To not merely accept the desire for WOHE at face-value, but to defend it, to at least sketch a positive case. WOHE is important; in my view, its value rests on three pillars: Pedagogy, confidence, and security. 8 I’ll touch briefly on all three.

As to pedagogy: Male and female brains are, typically (and literally), wired differently. It is no surprise, then, that men and women typically respond to different teaching approaches. Dottie King, President of St. Mary-of-the-Woods College, Terre Haute, IN, spoke eloquently and forcefully to this point in 2011:

[T]he teaching pedagogy has to be different. We know that women feel a lack of confidence in some of the ways that [STEM] topics are traditionally taught. For example, if I’m teaching a mathematics problem and I say something like “the rest of that is obvious,” and then I go on: For a female, that may not be obvious at all. And how a young male interprets that is, “okay, I’ll figure that out later”; how a young woman interprets that is, “I’m not good at this, I don’t see it, and so I can’t do it.”

Females also do not like to see skipped steps. We’re very detail-oriented as opposed to males, we’re wired a little differently. We like to see every step of the problem, in detail, and we want to see more than one example, because with that, understanding the nuances of the problem, our confidence level comes up.

The final thing that’s really important for women is, and it’s not going to be surprising to you, we’re very verbal: We like to talk, and we talk out our solutions and bring meaning to our world that way … It’s just the nature of how we communicate with one another, and in the mathematics classroom, just silently working out problems doesn’t lead women to the kind of understanding they get if they’re allowed to talk through solutions in groups. So the pedagogy needs to be just a little different for us … [and] that same pedagogy … needs to go all the way [from middle school] up to the college level….

As to confidence, President King spoke effectively about that point, too, in the just-quoted interview. Having recounted her experience of being a student in a co-ed classroom and being reluctant to raise her hand, of not feeling confident to say “I don’t understand,” she noted her experience of later being a professor in a WOHE classroom:

After about four or five months, … I started realizing, I had a student in the classroom that reminded me very much of me … and I saw her one day raise her hand, she was a little shy about it, and a little apologetic about it, but she said, ‘could you do that again, I don’t understand.’ And I thought, ‘Oh, there’s the difference!’ Some students will thrive in any classroom and would have asked questions no matter he setting, but that student would have been me, and would not have asked….

. . . .

Young women who would become leaders any place quickly became leaders at [the Woods] … Some people were just destined and it was part of their very nature to be leaders…. But I began to notice something else: Students who I’m sure would survive any place and would graduate, but would not be leaders, I saw them assume leadership roles.

And I read about an interesting study where in the first go-round, they took groups of young women …, and each grouping of three was given a totally unknown problem to solve. And purposely it was above their ability level, so they would have to rely on trial and some unique ways to bring themselves to solution. Then a lot of observation was done….  And in each female group of three, there would be a lot of work on the problem, and a lot of discussion, … and everyone was sort of equal in the group, and everyone was very involved…. Then they repeated the whole thing with a different group, but now the groups of three were two females and one male…. [In the same scenario,] the women became silent note-takers, the male led the way, … and the women took notes and supported anything he wanted to do, they were no longer actively involved in the process at all. And I thought that was fascinating.

So say we all. I take this to have been the point underscored by Elizabeth Kiss, President of Agnes Scott College, Decatur, GA, in regard to the “incubator” role of women’s colleges:

[T]here is growing evidence that women students at coeducational colleges and universities continue to face subtle pressures that impede full equality of opportunity.  This was the conclusion … [of] a 2002-2003 study which found that women’s intellectual and personal confidence dropped over the course of their undergraduate years.  As one respondent put it, “being cute trumps being smart in the social environment.”  By contrast, women’s colleges build self-esteem and nurture a strong and feisty sense of self, preparing women to be leaders in a coeducational world. 

I asked a Sweet Briar alumna (now in her thirties) to talk about what the college meant to her, and she emphasized this point:

Sweet Briar is where I found my confidence in who I am.  I was super socially awkward as a high schooler … [and although I] picked SBC not so much because of the single-sex as because I fell in love with the campus and it seemed romantic and glamorous to go far away from home to this gorgeous place in the mountains[, I w]ound up discovering that I could completely be myself and no one thought I was weird.

Similarly, Joanne Creighton, then-President of Mount Holyoke College, South Hadley, MA: “With its own powerful traditions, norms, and values, and a sense of wholeness sui generis, a women’s college helps to develop in students a sense of confidence, competence, and agency. 9

A brief aside is in order to reject the notion that this is a futile exercise because, sooner-or-later, these women will have to deal with integrated environments. Yes, she will—but as a graduate. Sooner-or-later a soldier will have to face battle; should we abolish basic training? Sooner or later, a plant will have to face the elements outdoors; should we discard any seedling that needs to be started and nurtured under glass or indoors? Higher ed is not just about information transfer but formation, and if a woman leaves a woman’s college at 22 in the same state in which she arrived at 18, something has gone wrong. 10 King again:

I’m often asked . . . ‘OK, we get it, they come to a place where they feel safe and empowered and they find their voice. But when happens then when they go out into the real world?’ And I smile when I say it, ‘Once a woman finds her voice, she never loses it.’ So it’s not like she’s only confident in this sheltered environment, she just has to find the confidence. Then she always carries it with her.

Finally, as to safety: We are routinely warned about the dangers of violence, and particularly rape, on co-ed campi: That “on campus now … not only is rape so prevalent but also that there’s this pervasive culture of sexual harassment/rape culture.” What will happen at Wilson, which admitted male students last academic year and male residential students this academic year? It’s too soon to tell; the data reporting lags a couple of years behind. But that doesn’t leave us without data. Take Wells College, of Aurora, NY, which has a similar enrollment to Sweet Briar, and which went co-ed in 2005. According to data reported to http://ope.ed.gov/security, Wells had zero incidents of “forcible sex offenses” in 2001, 2002, 2003, or 2004; it had its first the same year that it went co-ed, another one the following year, two in 2009, and one each in 2012 and 2013, the last reported year. It had zero incidents of “aggravated assault” in 2001, 2002, 2003, or 2004; it had its first the same year that it went co-ed. Burglary went through the roof, too: 2001 was, confessedly, a bad year, with three reported incidents, but after four consecutive years without a recorded incident, Wells saw five in 2006, two in 2007, three in 2009, six in 2011, and two in 2012. This is a campus with ~500 students. 11The trend is clear and intuitive. FOHE does not eliminate the possibility of sexual violence on-campus, but it makes it less likely. As Bill Walton astutely asks: “When was the last time you read an exposé about sexual misconduct or hazing at a single-sex college?” 

 In fine, WOHE is important. There are several positive cases for it, but even if you don’t buy any of them, it’s undeniable that there are women who want it, and their needs are served by a small number of options. Women’s colleges are a precious and endangered resource, and when they’re gone, thanks in large part to Title IX, it is supremely unlikely that we can ever get them back. That is the context in which to hear from Bill Walton again: “Every person considering the university route — male and female — should be afforded the opportunity to select the school that is right for them. Small or big. Private or public. Single-sex or co-ed. Closing Sweet Briar would only remove another option for women and there is no financial basis for the closure. There is no fiscal distress so dire that it would sanction the shuttering of the college.” 

III.

I am not oblivious, of course, to the reality that WOHE’s perch is precarious. Discussing the question with students and alumnae, one has the definite impression that the value of WOHE is seen most clearly in the rear-view mirror rather than being an active draw at the time of admission, 12 and obviously that is a substantial hurdle. Here’s Agnes Scott’s President Kiss again: “The evidence for the continued relevance and importance of women’s colleges is clear.  Our challenge is to get this message out to prospective students and their families….” Let’s think about those prospective students for a moment.

It seems to me that the pool of potential applicants—the sum of women applying to college in the catchment area—breaks into four groups. The most numerous, we are told, will not consider WOHE, period. (We’re told that that group comprises anywhere up to 98% of all applicants, and I will stipulate that as a fact, arguendo; if the number seems daunting, consider that every WCC women’s college can meet current freshman enrollments with only 1% of all applicants. 13)  A second group strongly favors WOHE, for whatever reasons. A third group, which I suspect to be the least numerous, is completely indifferent: They would attend a women-only college, or not, without it playing any strong part in their selection. Finally, there is a fourth group, analytically-distinct from the second: Women who are well-disposed toward WOHE, whose preference is WOHE, but not decisively. (Arguably, there is a fifth group: Those whose parents have a very strong view in favor of WOHE and are able to impress upon their daughters this desire with sufficient intensity to win deference on the point.) The challenge for the Admissions teams at colleges like Sweet Briar is to ensure that they are on the radar for students in all but the first group, and the challenge for all of us in the WOHE community is to articulate and press a positive case for WOHE that chips off a few applicants from group one and pushes them into group three, and pushes applicants from group three into group four. 

Let us wrap up by returning to Sweet Briar. Reading Parker’s departing remarks has a whip-saw effect; one is left to wonder which of three unpleasant possibilities is true: Parker dissembled , or Jones and the board are now dissembling, or else the situation deteriorated rapidly in the few months between Parker’s departure and the decision to close. 14 Perhaps it is all three. But it must be at least one. Either way, the New York Times is surely correct to observe that that board’s decision “has transformed this tranquil community into a hotbed of anger and activism”; it quotes senior Leah Lumenuck ’15: “I now know more about nonprofit law than I feel I know about chemistry — and I’m a chemistry major. We’re at a liberal arts college that empowers women. Now we’re finding ways to use that education to empower ourselves.” And Bill Walton, one more time: “Sweet Briar educated her Vixens well and, suspicions aroused, they are fighting back with a dedication and ferocity that would make Indiana Fletcher Williams flush with pride!” It seems to me, then, that Sweet Briar, like many women’s colleges, has been a greenhouse in which many young women have been nurtured and grown into leaders. If so, the board has perhaps picked a fight with the wrong group of women. Sic semper tyrannis indeed.

Notes:

  1. 85 Sweet Briar Magazine, no. 1, at 2 (2014). Full disclosure is in order: I work for a women’s liberal-arts college (although not SBC), which means that I am not without a dog in this race.
  2. Id., at 3.
  3. Official enrollment figures are not available, but US News reports the following: Spring 2015: 703; Spring 2014: 723; Spring 2013: 745; Spring 2012: 747; Spring 2011: 745. Those numbers are problematic, because they seem to conflict with reports that 2015 enrollment had dropped to the mid-500s. But it seems reasonable to conclude that if they are off, they are likely off consistently, which makes them sufficiently reliable for assessing trends even if  we need to subtract 200 from each number.
  4. Compared to the heavyweights, a $94 million endowment may seem puny, but that isn’t the right comparison. The right comparison is to other Colleges in the Women’s College Coalition, and of the 38 member institutions for which endowment data is readily available, Sweet Briar clocks in 14th. If we exclude the gas giants Wellesley and Smith (which are so massively larger than the next-nearest members that they blow the curve and must be considered as being in a class of their own), the average endowment of the remaining 36 is $110.7 million, which suggests that Sweet Briar is far from dire straights. These numbers also contextualize the President’s claim that the college needed to almost treble its endowment to $250 million to survive: That would push Sweet Briar up from fourteenth to eighth on the afore-mentioned list, right behind Agnes Scott ($258 million) and a little ahead of Barnard College ($240.7 million).
  5. The Truth About Women’s Colleges: Comparative Enrollment Trends of Women’s Colleges  and Private, Coeducational Colleges, Women’s College Coalition, http://womenscolleges.org/sites/default/files/report/files/main/wcc01_trendsreport_final_interactive.pdf, pp.4-5 (June 2014) (“Total applications to private, co-ed colleges are up 59% and applications from women are up 60% from 2004 to 2012 … [and a]t women’s colleges, applications increased 53% from 2004 to 2012″).
  6. Sara Kratzok & Casey Near, Why a Women’s College?, Women’s College Coalition, http://womenscolleges.org/sites/default/files/report/files/main/why_a_womens_college_ebook.pdf, p.3 (2d ed. 2014).
  7. Cf. Kratzok & Near, at 6, 9.
  8. There are other arguments that could be made. For example, Joanne Creighton, then-President of Mount Holyoke College, South Hadley, MA, framed a feminist argument in a 2007 article: “A woman’s college … is the equivalent of Virginia Woolf’s ‘room of one’s own,’ a college of women’s own, free of many of the inhibiting presumptions of the male-dominated world …Graduates are more able to see gender-repression when they encounter it and to distinguish between personal and systemic barriers to success.” Similarly, Johnnetta Cole, then-president of Bennett College, Greensboro, NC, suggests that “[a]s long as we live in a society where there is power and privilege in being white and being male, we need these institutions.” And another kind of argument focuses on the supposed honor-roll of graduates from women’s colleges: Surely if person x graduated from a women’s college, that validates WOHE, right? See, e.g., Kratzok & Near, p.20. To me, however, such arguments are less persuasive than conservative arguments that focus on fidelity to mission and the concerns mentioned in the text accompanying this footnote.
  9. Creighton, supra note 8.
  10. Accusations that this is “paternalistic” should be saved for liberal defenders of WOHE.
  11. Or take Lesley University, a much larger school in Cambridge, MA. When they went co-ed in 2005, http://ope.ed.gov/security says that they had zero forcible sex offenses, zero cases of aggravated assault, and zero cases of burglary in 2001, 2002, 2003, and 2004 combined. But in 2006, they had their first case of a forcible sex offense, followed by two more in 2008, another in 2011, two in 2012, and three in 2013; aggravated assault cases also started to tick upwards, and burglary went from zero to twelve in 2006, six in 2007, one in 2008, three in 2009, three in 2010, eight in 2011, fourteen in 2012, and, in 2013, no fewer than twenty-seven. Or take Immaculata University of Malvern, PA, again a larger school compared to Sweet Briar. It started admitting men to the fall term of 2005; this one is something of an outlier in this survey because crime was a problem on-campus before male students were admitted, but it has seen a significant increase since then. It records no incidents of forcible sex offenses in 2001, 2002, 2003, then one in 2004, and none in 2005 or 2006–but then three in 2007, one in 2008, three in 2010, two in 2011, and two in 2012. Of 28 reported incidents of burglary since 2001, all but four came after coed.
  12. You can see this, for example, in the comments of the SBC alumna quoted above.
  13. Last year, Inside Higher Education reported that total FTF enrollments in American degree-granting institutions were 3,196,000, which can serve as a rough proxy for the lower threshold of applicants. Assume that half are female. If 98% of those would not even consider women’s colleges, that yields 31,960 applicants who would. I might concede that the model of WOHE was in serious trouble if the total number of seats in freshmen classes in all the WCC colleges approached or exceeded 32,000, because then they can’t fill those seats without chipping off some of those “never ever” students. By my rough count, however, there are just shy of 15,600 such seats to fill. Sweet Briar’s entire freshman class comprises less than 0.005% of all applicants.
  14. The last would seem the least plausible possibility if the allegation in the Amherst County complaint that the administration began taking steps to retain legal counsel to assist in closure as early as December 2014 proves true. Indeed, that complaint alleges that the board began to purge dissenting members before Parker’s departure.

Reflection on Philemon

St. Paul’s Epistle to Philemon presents a study in the Christian use of power. Philemon has civil power over Onesimus, and Paul has (or claims) ecclesiastical power over Philemon; Paul wants Philemon to abjure his power over Onesimus, and so chooses a rhetorical strategy that abjures his own power over his suffragan: “Though I might well make bold in Christ to prescribe a duty to thee, I prefer to appeal to this charity of thine.” 1 

From the text, we can sketch only an outline of events: Philemon, who had at some point been converted by St. Paul, was at least the benefactor and perhaps even the presbyter or bishop of a house church. 2 Onesimus, a slave of Philemon, fled and happened upon Paul in prison, who (as was his way) converted Onesimus. Paul, we infer, then sent Onesimus back to Philemon with the eponymous epistle in which he exhorts Philemon not to stand on his legal rights (unhappy consequences attended runaway slaves in the Roman Empire 3), but rather to receive Onesimus as a brother in Christ.

The letter echoes admonitions found throughout the new testament that converts have put away their old selves and become something new, 4 and reflects the logical corollary that this conversion “should necessarily have effects on the social level” 5: The Christian community must deal internally with grievances among the brethren rather than involving civil authorities. 6 Before his conversion, “Onesimus represented the least respectable type of the least respectable class in the social scale,” says Lightfoot, 7 but “[d]o not think of him any longer as a slave,” says Paul; “he is something more than a slave, a well-loved brother, to me in a special way; much more, then, to thee, now that both nature and Christ make him thy own.” St. John Chrysostom aptly remarks that having been converted, Philemon “is worthy not only of pardon, but of honor,” 8 and that “the name of the Church does not suffer masters to be angry, even though they are reckoned together with their servants. For the Church knows not the distinction of master and servant. By good actions and by sins she defines the one and the other.” 9

The text affords no basis for speculation about Philemon’s response. The Apostolic Constitutions, for whatever they are worth, claim that Onesimus went on to be Bishop of Berea, in Macedonia, another Paul-associated church 10—which, if credited, suggests a positive outcome. 11 I also think that we have to take Paul’s kind words for Philemon (despite their sycophantic ring to the informal standards of modern American English 12) at face-value, which suggests that Paul expects compliance. Haydock has a nice line suggesting what Paul was trying to achieve, putting these words, rhetorically, in the apostle’s mouth: “The pardon I crave is not for your slave, but for my son.” 13

Notes:

  1. Chrysostom remarks: “As if he had said, I know indeed that I can effect it by commanding with much authority, from things which have already taken place. But because I am very solicitous about this matter, I beseech you. He shows both these things at once; that he has confidence in him, for he commands him; and that he is exceedingly concerned about the matter, wherefore he beseeches him.” Homily #2 on Philemon, available at http://www.newadvent.org/fathers/23092.htm (all online resources as last visited March 10, 2014).
  2. Lightfoot concludes that it was in Collossae, but the text alone seems inconclusive. See J.B. Lightfoot, Saint Paul’s Epistles to the Colossians and to Philemon 304-05 (1879). Nevertheless, it is interesting to note that the Apostolic Constitutions list Philemon as Bishop of Colossae. Lib. VII, cap. IV, available at http://www.newadvent.org/fathers/07157.htm. While this is easy to dismiss as legend, see, e.g., Lightfoot, at 306; Edward Horn, Annotations on the Epistle to Philemon in 10 The Lutheran Commentary 224 (Jacobs, ed. 1897), the legend is not without circumstantial support. Two points stand out.
    The first might be considered under the heading “if not Philemon then who?” What was Philemon’s relation to the church that met in his house? Was he merely its benefactor? Given Paul’s concern for proper appointment of officers for churches, see, e.g., Tit 1:5, whether we term them ἐπισκόπους, πρεσβυτέρους, or any given rendering of those terms, surely the church that met at chez Philemon either had such an officer or was subject to an officer with municipality- or region-wide jurisdiction. Is it inconceivable that a benefactor such as Philemon might have been appointed as bishop? It is at least plausible.
    The second we might consider under the heading “quo warranto?” Paul claims that he has authority to order Philemon in regard to his conduct with regard to Onesimus. How so? Do bishops usually have authority to order laymen to buy or sell property (as Onesimus, unpalatable though it is to us to acknowledge it, was deemed to be by Roman law)? If Philemon was Paul’s suffragan rather than merely his lay subject, his claim to such authority seems more plausible.
  3. See Jennifer Glancy, Slavery in Early Christianity 88-89 (2006); cf. Lightfoot, at 321-22.
  4. See, e.g., Eph 4:24.
  5. Instr. Libertatis nuntius, IV.13, 76 AAS 876, 885 (CDF, 1984), available at http://www.vatican.va/roman_curia/congregations/cfaith/documents/rc_con_cfaith_doc_19840806_theology-liberation_en.html.
  6. See Mt 18:15 et seq.
  7. Lightfoot, supra note 2, at 311.
  8. Homily #2, supra note 1.
  9. Homily #1 on Philemon, available at http://www.newadvent.org/fathers/23091.htm; cf. Encyc. In plurimus, no. 8 (Leo XIII, 1888).
  10. Acts 17:10-13.
  11. See Apostolic Constitutions, supra note 2.
  12. It is hard for me to imagine that, if I were Paul, I would have adopted this rhetorical framework, which rings insincere to modern ears, smacking of cynical manipulation and flattery (see Summa Theologica II-II q.115, available at http://www.newadvent.org/summa/3115.htm).
  13. Haydock’s Commentary on Philemon, available at http://haydock1859.tripod.com/id243.html.

Eligibility questions about Cruz and Rubio

This morning, Senator Ted Cruz (R-Tex.) announced that he was running for President; a similar announcement from Senator Marco Rubio (R-Fla.) is expected soon. 1 During the time in which each man flirted with such a bid, questions of their eligibility to that office were raised. Since 2008, the natural-born citizen requirement of Article II has received renewed attention 2; people forget that “Birtherism” came into being in order to challenge John McCain’s quest for the GOP nomination: My co-blogger at Stubborn Facts and I debunked that theory in a pair of posts in February 2008. 3 Phillip Berg, a Hillary Clinton supporter, then took the fateful step of applying the notion to Barack Obama, and thus was born a cottage industry of conspiracy. 4 For those who have drunk the “birther” kool-aid, no argument will suffice, but for the rest of us, it is worth a brief analysis. Surprisingly, while Rubio is safe, Cruz presents a more difficult question.

I.

Article II section 1 of the Constitution of the United States requires that the President be a “natural-born” citizen. As an original matter, Constitutional text draws its content from the original meaning of its language. 5 In particular, when the Constitution uses the language of the Law of England—”natural-born citizen” is, mutatis mutandis, the cognate of “natural-born subject” under English law—it presumptively incorporates that law and the relevant precepts thereof. 6 And when we want to know the content of that law as it would have been understood by the founding generation as the legal backdrop to their work, we turn first and foremost to the Commentaries of William Blackstone. 7 These bear extended quotation on this point:

THE first and most obvious division of the people is into aliens and natural-born subjects. Natural-born subjects are such as are born within the dominions of the crown of England, that is, within … the allegiance of the king; and aliens, such as are born out of it. Allegiance is the tie, or ligamen, which binds the subject to the king, in return for that protection which the king affords the subject. The thing itself, or substantial part of it, is founded in reason and the nature of government; the name and the form are derived to us from our Gothic ancestors. …

. . . .

WHEN I say that an alien is one who is born out of the king’s dominions, or allegiance, this also must be understood with some restrictions. The common law indeed stood absolutely so; with only a very few exceptions: so that a particular act of parliament became necessary after the restoration, 29 Car. II. c. 6., for the naturalization of children of his majesty’s English subjects, born in foreign countries during the late troubles. And this maxim of the law proceeded upon a general principle, that every man owes natural allegiance where he is born, and cannot owe two such allegiances, or serve two masters, at once. Yet the children of the king’s ambassadors born abroad were always held to be natural subjects, 7 Rep. 18: for as the father, though in a foreign country, owes not even a local allegiance to the prince to whom he is sent; so, with regard to the son also, he was held (by a kind of post-liminium) to be born under the king of England’s allegiance, represented by his father, the ambassador. To encourage also foreign commerce, it was enacted by statute, [the Status of Children Born Abroad Act, 1350,] 25 Edw. III. st. 2., that all children born abroad, provided both their parents were at the time of the birth in allegiance to the king, and the mother had passed the seas by her husband’s consent, might inherit as if born in England: and accordingly it hath been so adjudged in behalf of merchants. Cro. Car. 601. Mar. 91. Jenk. Cent. 3. But by several more modern statutes, [the Foreign Protestants Naturalization Act, 1708,] 7 Ann. c. 5. and [the British Nationality Act, 1730,] 4 Geo. II. c. 21, these restrictions are still farther taken off: so that all children, born out of the king’s ligeance, whose fathers were natural-born subjects, are now natural-born subjects themselves, to all intents and purposes, without any exception; unless their said fathers were attainted, or banished beyond sea, for high treason; or were then in the service of a prince at enmity with Great Britain.

THE children of aliens, born here in England, are, generally speaking, natural-born subjects, and entitled to all the privileges of such. In which the constitution of France differs from ours; for there, by their jus albinatus, if a child be born of foreign parents, it is an alien.

A DENIZEN is an alien born, but who has obtained ex donatione regis letters patent to make him an English subject: a high and incommunicable branch of the royal prerogative. A denizen is in a kind of middle state between an alien, and natural-born subject, and partakes of both of them. …

NATURALIZATION cannot be performed but by act of parliament: for by this an alien is put in exactly the fame state as if he had been born in the king’s ligeance; except only that he is incapable, as well as a denizen, of being a member of the privy council, or parliament, etc. 12 Wm. III. c. 2. No bill for naturalization can be received in either house of parliament, without such disabling clause in it. 1 Geo. I c. 4. Neither can any person be naturalized or restored in blood, unless he hath received the sacrament of the Lord’s supper within one month before the bringing in of the bill; and unless the also takes the oaths of allegiance and supremacy in the presence of the parliament. 7 Jac. I. c. 2. 8

The first and most obvious point to take from this is that a natural-born subject is distinct from the “artificial” subject, i.e. a denizenized or naturalized subject. 9 Another obvious point is that it was not felt in any way inappropriate that the political rights of the artificial subject be limited. 10 Thus, we should not be surprised to see Article II expressly distinguish between “natural-born citizen[s]” and “citizen[s]” simpliciter, and to withhold a right from all but a grandfathered subset of the latter.

At the time of the founding, English law on who was a natural-born subject contained various strands. The common law, strictly-understood, 11 that is, judge-made law, seems to have generally required both of the elements that Pat and I discussed in our McCain posts: “There are two Incidents regularly that are necessary to make a subject born; First, that his parents, at the time of his birth, be under the actual obedience of the King; secondly, that the place of his birth be within the King’s dominions.” 12 But the child of an alien in the king’s realm was ordinarily held to be a natural-born subject, which tilts more toward ius solis, and the child of an Englishman is a natural-born subject even if he is born outside of the king’s realm so long as his parents were sent there by the king, which tilts more toward ius sanguinis. Meanwhile, statutory law was tilting decisively toward ius sanguinis: The child of an Englishman in good standing was accounted an Englishman. (Its drift in the eighteenth century was doubtless liberal, but its substance was ancient.) Blackstone appears to frame the organizing concept as a practical one of allegiance. 13 

These are the materials that must govern decisions on this point. There is no precedent to speak of: Birthers are apt to invoke two cases, Minor v. Happersett and United States v. Wong Kim Ark, but they do so carelessly. While both cases contain dicta about the natural-born citizen clause, neither has an on-point holding. Minor holds that suffrage is not a “privilege” of citizens of the United States for purposes of section one of the Fourteenth Amendment; in dicta, the court noted that “[t]he Constitution does not, in words, say who shall be natural-born citizens” for purposes of the eligibility clause, and that “[r]esort must be had elsewhere to ascertain that,” specifically to English law, and recited essentially what I have quoted from Blackstone. 14 And Wong Kim Ark holds (as is so familiar today as to seem obvious) that the children of aliens born on American soil do obtain citizenship by operation of the Fourteenth Amendment; it, too, has some dicta affirming the place of English law: The clause “must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the Constitution. The language of the Constitution, as has been well said, could not be understood without reference to the common law.” 15

With no binding precedent, and no long-standing tradition to give content to the clause, 16 we are left with the original meaning. And because the adjective “natural-born” had accumulated meaning as a term-of-art, we do not parse it as natural language, but instead give it the meaning that it would have been understood to bear. 17 A “natural-born” citizen means in the context of Article II,  mutatis mutandis, that which English law apprehended to be a “natural-born” subject. Thus, as I argued in 2008, McCain was a natural-born citizen because he was born on American sovereign territory (as the Panama Canal Zone was, at the time), and even if he wasn’t, as Pat argued, English law at the time of the founding recognized that foreign-born children of Englishmen sent abroad by the king were considered natural-born subjects, and this rule was sufficiently embedded by 1788 that children of soldiers and diplomats would have been thought of as natural-born citizens. Either of these foundations alone supported McCain’s natural-born citizenship; both together made it a slam-dunk.

II.

To their credit, the birthers sought to be consistently wrong, and went after Marco Rubio when he became flavor of the month: Rubio was born in Florida, but to non-citizen parents. 18 Soon thereafter, he was succeeded as flavor of the month by Cruz, remembered fondly by many of us as an advocate at the Supreme Court. 19 Cruz was born in Canada to an American mother and non-American father. 20 No one disputes that each of these men are American citizens; the charge is that they are not natural-born citizens as Article II comprehends that term.

Marco Rubio was born in 1971 in Miami, Florida, to Mario Rubio and Oria Garcia, Cuban citizens who immigrated to the United States in 1956 and who would become naturalized Americans in 1975. 21 They were not ambassadors, or employees of the Cuban government in any capacity. 22 His case is therefore straightforward. From Blackstone, we know that to the Framers’ understanding, the “children of aliens, born … in England, [we]re, generally speaking, natural-born subjects, and entitled to all the privileges of such,” and so the original understanding of Article II would have been that “children of aliens, born here in [America], are, generally speaking, natural-born [citizens].” Rubio is therefore eligible to be President. 23

Ted Cruz might not be. He was born in 1970 in Calgary, Canada, to Rafael and Eleanor Cruz. Eleanor was an America citizen; Rafael, a Cuban citizen who would become a naturalized American in 2005. 24 They were in Calgary working for an oil company. 25 Certainly, Cruz became a naturalized citizen at birth, 26 but that is not the test; as we have seen, in the law of England at the time of the framing, “naturalized” existed in contrast to “natural-born.” Had Cruz been born south of the border, there is no doubt that he would be a natural-born citizen. But Canada is not part of the United States, the Cruzes were not there on the errand of the United States, and as a result, there is a serious question of Cruz’s eligiblity.

If we try to apply Blackstone’s comments to Cruz, problems quickly mount. Had Cruz’s father been the American citizen, and his mother the non-citizen, he would plainly have been a natural-born citizen, but the English statutes that extended that right issue are framed in stubbornly-androcentric terms: Children born on foreign soil “whose fathers were natural-born subjects, are … natural-born subjects themselves.” The foreign-born child of a British man was a natural-born subject, but what of the foreign-born child of an British woman married to an alien? What would the founders have understood English law to say of that child’s citizenship? And what are we to infer from the first Immigration Act, 27 which provided that “the children of citizens of the United States, that may be born beyond sea or out of the limits of the United States, shall be considered as natural born citizens”? Does the first clause abolish the patrilineal focus of the English statutes? Does the second restate the understanding that such children were natural-born citizens, or does it imply that they were not (insofar as statutory text is not to be read as a nullity)? Does “as” mean “as if they were” (as it clearly does in the preceding clause of the statute) or “to be”? The answers to these questions are, at best, not obvious.

III.

A useful article in the Harvard Law Review by former solicitors-general Neil Katyal and Paul Clement (another rockstar of the conservative legal movement, and one with whom Cruz crossed swords at oral argument in Medellin v. Texas, incidentally) attempts to give answers to some of this. 28 They insist, as I have said above, that the test is what the term “natural-born” meant under English law, but go astray in fixating on the notion that anyone who is a citizen from birth meets this test. That’s problematic both as a matter of English law and Constitutional law. 

As to the former: As we have seen above, at common-law, the natural-born subject was one born within the king’s realm, but statutes had afforded natural-born status to children of Englishmen born beyond the realm if they were there on the king’s errand—ambassadors, for example. Statutes had long extended that: All children born abroad might be counted as natural-born “provided both their parents were at the time of the birth in allegiance to the king, and the mother had passed the seas by her husband’s consent,” we heard Blackstone say, and by the time of the framing, as a general matter, all children born abroad might be counted as natural-born provided their “fathers were natural-born subjects….” But Cruz’s situation does not fit squarely within that, because it was his mother who was the natural-born citizen; his father was not even a naturalized citizen by that time. In these politically correct days, we want to dismiss the question as sexist, but that’s anachronistic; how would the Founders have understood English law to deal with gender distinctions of that kind? That is the question here. I don’t know the answer, and if Katyal & Clement do, they don’t tell.

As to the second, I want to suggest two problems with Katyal & Clement’s position. In some circumstances, Congress has provided that certain persons may be made citizens in adulthood; those people are naturalized citizens. In other circumstances, Congress has provided that certain other persons become citizens at birth; those people, say Katyal & Clement, are not naturalized citizens, but natural-born. Only those who at some “later time” (how much later?) must go through naturalization are not natural-born. The first problem: What about people who, for example, become citizens by virtue of 8 U.S.C. § 1401(f), which makes citizens of persons “found in” the United States sine parentibus if they are younger than five? Does section 1401(f) make naturalized citizens or natural-born citizens? What if the child is four years old? What if four days? Can the answer be different depending on the age of the child? It seems that it would have to be, according to  Katyal & Clement, but why? And where is the cutoff? And the second problem: If Congress can make natural-born citizens, it has the power to delete the natural-born requirement. Katyal & Clement’s position is that by making certain people citizens from birth, it has made them not naturalized citizens but natural-born citizens; but suppose—and the answer can’t be that the hypothetical is too extreme—that Congress passed a law stating that any person born anywhere are U.S. Citizens from birth. Is anyone in the world then potentially eligible to be President? If you adhere to Katyal & Clement’s theory, you must say yes. Or perhaps a more plausible hypothetical: Imagine that there were to be a particularly war-torn small country, Elbonia, and Congress passed a law making all persons born in Elbonia became U.S. Citizens from birth, hoping to rescue as much of the population as possible. Are all Elbonians thereby made potentially eligible to be President? If you adhere to Katyal & Clement’s theory, you must say yes.

* * *

The reader may be anxious to know how these vexing and intricate questions may be resolved, and will doubtless be frustrated to learn that I do not intend to do so here. For now, it will suffice to say that while Rubio is eligible, all that we can say with certainty about Cruz is that it’s uncertain.

To be clear, my position is not that Cruz is ineligible. Katyal & Clement go some way toward suggesting that he is eligible, their article is pretty good, and it’s certainly using the right materials. But I do think that the question is more difficult than it is being given credit for, and I must admit to being troubled if (as appears to be the case in many quarters) our first reaction to a potential problem is to associate it with some knuckle-dragging simpletons who once pressed similar concerns in a different context. Even a broken clock is right twice every day, and would be quite pathetic if our sole reason for refusing to engage seriously with a serious problem is that eight years ago, a few unserious people made a similar argument about someone else.

So: In my view, Prof. Sarah Duggin was right to be cautious in an NPR interview cited above. It’s not an open-and-shut case. I suppose that a strong purposivist such as Justice Breyer might say that because the purpose of the clause was to screw Alexander Hamilton, any candidate who isn’t Hamilton is in the clear. 29 But for the rest of us, for those of us benighted FedSoc types who care about constitutional text and originalism, a group that certainly includes brother Cruz, I had thought, 30 there is a serious question hanging over Cruz’s candidacy. And so I want to suggest that the question becomes this: Is Cruz really so good a candidate that we want to license another four or eight years of birtherism? Is he really so good a candidate that we are willing to risk the precipitation by the Democratic party of a constitutional crisis? (Do not suppose for a moment that they are not sufficiently brazen.) These doubts may, alas, to end Cruz’s candidacy before it begins.

 

 

Notes:

  1. Nick Corasaniti & Patrick Healy, Ted Cruz Becomes First Major Candidate to Announce Presidential Bid for 2016, The New York Times, March 23, 2015, http://www.nytimes.com/2015/03/24/us/politics/ted-cruz-2016-presidential-race.html?_r=0 (last visited March 23, 2015. As always, I claim “proprietor’s privilege” to post on matters beyond our usual scope.
  2. To the point, in fact, where one of NPR’s first reactions to Cruz’s announcement was to raise the eligibility question. See Robert Siegel, Canadian-Born Cruz Faces Potential Hurdle To Presidential Aspirations, All Things Considered, March 23, 2015, http://www.npr.org/2015/03/23/394906486/canadian-born-cruz-faces-potential-hurdle-to-presidential-aspirations.
  3. See Simon Dodd, McCain’s Eligibility, Stubborn Facts, Feb. 16, 2008, http://stubbornfacts.us/politics/2008_election/mccains_eligibility; Pat HMV, On McCain’s Birth and Eligibility to be President, Stubborn Facts, Feb. 28, 2008, http://stubbornfacts.us/politics/2008_election/on_mccains_birth_and_eligibility_to_be_president.
  4. See, e.g., Chris Danielson, The Color of Politics 172 (2013); cf. Dodd, Establishing eligibility, Stubborn Facts, Jan. 26, 2011, http://stubbornfacts.us/politics/2012_election/establishing_eligibility (collecting cases).
  5. See District of Columbia v. Heller, 554 U.S. 570, 576-77 (2008); Dodd, The limits of the Recess Appointment Power, part III, Stubborn Facts, April 26, 2010, http://stubbornfacts.us/law/limits_recess_appointment_powercf. Coleman v. Miller, 307 U.S. 433, 460-1 (opinion of Frankfurter, J.).
  6. See Wilson v. Arkansas, 514 U.S. 927, 931 (1995); Dodd, Eligibility, redux, n.1, Stubborn Facts, May 2, 2008, http://www.stubbornfacts.us/politics/serranos_eligibility; cf. Crawford v. Washington, 541 U.S. 36, 43 (2004); Kyllo v. United States, 533 U.S. 27, 31-32 (2001); Murray’s Lessee v. Hoboken Land & Improvement Co., 59 U.S. 272, 276-77 (1856); Dodd, In re Firearms debate, 3 MPA 23, 31 n.2 (2013).
  7. See Washington v. Glucksberg, 521 U.S. 702, 712 (1997); United States v. Wood, 299 U.S. 123, 138 (1936); Schick v. United States, 195 U.S. 65, 69 (1904); accord Rogers v. Tennessee, 532 U.S. 451, 477 (2001) (Scalia, J., dissenting); Neder v. United States, 527 U.S. 1, 30-31 (1999) (Scalia, J., concurring). We habitually refer to what was understood “at common-law,” but truth be told, this is usually a loose synonym for “settled English law”; the technical distinction between statute and common law is not the object in view. Cf. Thomas Wood, An Institute of the Laws of England 10-11 (1754).
  8. 1 William Blackstone, Commentaries on the Law of England 354, 361-62 (1765) (emphases added and some citations omitted).
  9. Cf. Wood, supra, at 23.
  10. Blackstone cites the Act of Settlement 1700, 12 Wm. III. c. 2 § 3: “[N]o person born out of the kingdoms of England, Scotland or Ireland or the dominions thereunto belonging, although he be naturalised or made a denizen (except such as are born of English parents), shall be capable to be of the privy council or a member of either House or Parliament or to enjoy any office or place of trust either civil or military or to have any grant of lands, tenements or hereditaments from the Crown to himself or to any other or others in trust for him.”
  11. Compare, e.g., entry Common law in Giles Jacob, A new law-dictionary containing the interpretation and definition of words and terms used in the law etc (1729) (“the Law of this Kingdom, simply, without any other Laws; for such Laws as were generally holden before any Statute was enacted in Parliament to alter them”), with entry Statute, in ibid.
  12. Entry Alien, in ibid.
  13. Cf. United States v. Wong Kim Ark, 169 U.S. 649, 655 ff. (1898)
  14. Minor v. Happersett, 88 U.S. 162, 167-68 (1875).
  15. Wong Kim Ark, supra, 169 U.S. at 654-55 (citations deleted).
  16. Cf. Marsh v. Chambers, 463 U.S. 783,786-87 (1983); Rutan v. Republican Party of Illinois, 497 U.S. 62, 95 (1990) (Scalia, J., dissenting).
  17. “The touchstone of Constitutional interpretation ‘is the original public meaning that the text’s words and phrases would have had, in context, to an objective, informed reader and speaker of the English language within the relevant political community, at the time the Constitution was written and adopted.'” The Limits of the Recess Appointment Power, supra, part III.A.1 (quoting Michael Stokes Paulsen, The War Power, 33 Harv. J. of L. & P.P. 114, 116 n.5 (2010)); see generally ibid., n.5.
  18. See, e.g., Javier Manjarres, Is Rubio Eligible to be President, Breitbart, April 22, 2013, http://www.breitbart.com/InstaBlog/2013/04/22/Is-Rubio-Eligible-to-be-President-of-the-U-S .
  19. See http://www.oyez.org/advocates/c/r/r_ted_cruz. I rather like him; like Chris Christy, he is a brawler, and one should not wish to see him as a model for the next generation of politicians, but as an exception he has a certain charm.
  20. See David Graham, Yes, Ted Cruz Can Be Born in Canada and Still Become President of the U.S., The Atlantic, May 1, 2013, http://www.theatlantic.com/politics/archive/2013/05/yes-ted-cruz-can-be-born-in-canada-and-still-become-president-of-the-us/275469/ ; Aaron Blake, Cruz will renounce Canadian citizenship, Post Politics, Aug. 19, 2013, http://www.washingtonpost.com/blogs/post-politics/wp/2013/08/19/cruz-will-renounce-canadian-citizenship .
  21. See Wikipedia, https://en.wikipedia.org/wiki/Marco_Rubio; Manuel Roig-Franzia, The Rise of Marco Rubio 24 ff. (2012).
  22. See id.; Becky Bowers, Sen. Marco Rubio said his parents ‘came to America following Fidel Castro’s takeover’ of Cuba, Politifact, Oct. 21, 2011, http://www.politifact.com/florida/statements/2011/oct/21/marco-rubio/sen-marco-rubio-said-his-parents-came-america-foll.
  23. The contrary claim that he ineligible insists that a child of resident aliens is not natural-born, perhaps because overreading dicta in Minor. See Minor, supra, at 167-68 (“it was never doubted [at common-law] that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives or natural-born citizens…. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first”). It suffices to say that whatever the merits of this as a statement of fact, the authority on which the Framers relied, Blackstone, was not among the doubters, as we have seen.
  24. See Ted Cruz, Wikipedia, http://en.wikipedia.org/wiki/Ted_Cruz#Early_life (visited Aug. 20, 2013).
  25. Robert Costa, The Rise of Rafael Cruz, National Review, http://www.nationalreview.com/article/356934/rise-rafael-cruz-robert-costa (“Cruz [Sr.] decided to move to New Orleans to take a new job, which is where he met his second wife, Eleanor Darragh, a computer programmer from Delaware, who was also working for an oil company. They married, moved to Calgary, Alberta, and in late 1970 had their first and only child, Rafael Edward Cruz. They weren’t in Canada long, choosing to move to Houston, where they continued to work for oil companies”); Kate Zernike, A Test for the Tea Party in Texas Senate Race, Nov. 17, 2011, http://www.nytimes.com/2011/11/18/us/politics/ted-cruz-is-a-test-for-the-tea-party-in-texas-race.html?_r=2&
  26. See 8 U.S.C. § 1401(e).
  27. 1 Stat. 103 (1790).
  28. See Katyal & Clement, On the Meaning of “Natural Born Citizen,” 128 Harv. L. Rev. F. 161 (2015), available at http://harvardlawreview.org/2015/03/on-the-meaning-of-natural-born-citizen.
  29. But see Garrett Eps, American Epic 40-41 (2013) (noting that this enduring myth of American politics is dubious at best).
  30. See http://www.fed-soc.org/experts/detail/r-ted-cruz.

Re the joint editorial on the death penalty

Like Professor Garnett, I am skeptical of the “joint editorial” of various Catholic publications that purports to call for an end to the death penalty. 1 The authors are not coy about the context that prompts their comments: Later this term, the Supreme Court will hear Glossip v. Gross, in which recent lethal-injection protocols are challenged. 2 I dissent because it is abundantly clear, given this context, that the Catholic publications are not calling for abolition of death penalty; they are calling for the Supreme Court to strike it down in an act of illegitimate judicial activism.

I should underscore that I accept Evangelium vitae and the subsequent amendment to the Catechism confining the death penalty to cases where the community cannot otherwise be protected. 3 I have recently circulated a petition to commute a death sentence and, in another place, suggested that a person who publicly advocates the indiscriminate use of the death penalty should be dismissed from lay ministerial roles in parishes, just as and to no less extent than those who dissent on any other point of the Church’s teaching. I concede that the application of this standard admits of legitimate diversity, 4 but I do not doubt the principle. 

Nor do I have the slightest doubt that public acts and public officials are bound by those teachings. 5 Qua legislator, I might well vote for a law abolishing the death penalty; qua trial judge, I would feel obliged to resign if required by law to impose a mandatory death sentence (happily, a result precluded by Woodson v. North Carolina); qua governor with discretionary clemency authority, I would feel obliged to exercise that authority to (at a minimum) commute all capital sentences for which commutation was requested. (Qua juror, the situation is complex.) The precise contours of how this might apply are open to question, but I do not doubt the principle.

Nevertheless, I dissent, at least in part, from the joint editorial. Its call is not for the abolition of the death penalty, which any state may do at any time by statute, but for the Supreme Court to illegitimately declare the death penalty unconstitutional—an entirely different matter. The justices are not called upon in this or any other case to decide the wisdom or morality of the death penalty or any particular means for its execution, but rather its legality. The original meaning of the Constitution certainly does not exclude the death penalty. (Nor, by the way, does the teaching of the Church.) Nor, even if we accept the doctrinal developments of the twentieth century, do the touchstones of proportionality and the “evolving standards of decency” (the phrase of Trop v. Dulles) of American society: There is scant evidence of a durable consensus in American society that the death penalty generally or lethal injection particularly is cruel and unusual. Moreover, such evidence as there is must be taken with a grain of salt because it has been manipulated deliberately: Results are likely to be skewed by recent “botched” executions that were engineered by anti-deathpenalty campaigners who worked to undermine the hitherto-stable three-drug protocol. By making it impossible to obtain the necessary drugs, they forced state officials (often bound by oath and statute to carry out the executions) into precisely the experimentation on which those campaigners now seek to predicate their constitutional claims. That is not an attractive posture. 

To declare the death penalty unconstitutional would be to do nothing more or less than to wrap one’s own policy preferences in a constitutional garb, a set of clothes that even the fabled Emperor might deem gossamer, and I can neither support it nor acquiesce in the tendentious characterization of the so-called Catholic publications. I do not understand why opponents of the death penalty are ready to try any strategy except the legitimate one: Persuade your fellow citizens, pass a law, and abolish it. That is the right way to proceed. Calls for judicial activism, illegitimate and illicit, are not. 

Notes:

  1. See Rick Garnett, “Capital Punishment Must End,” Mirror of Justice, March 6, 2015, http://mirrorofjustice.blogs.com/mirrorofjustice/2015/03/capital-punishment-must-end.html; Editorial: Catholic publications call for end to capital punishment, National Catholic Reporter, March 5, 2015, http://ncronline.org/news/peace-justice/editorial-catholic-publications-call-end-capital-punishment; Elizabeth Scalia, Patheos Catholic Joins Joint Call to End Capital Punishment, The Anchoress, March 5, 2015, http://www.patheos.com/blogs/theanchoress/2015/03/05/patheos-catholic-joins-joint-call-to-end-capital-punishment; see also Kathryn Jean Lopez, Making the case against the death penalty, National Review, March 7, 2015, http://www.nationalreview.com/article/415034/making-case-against-death-penalty-interview.
  2. See Glossip v. Gross, ScotusBlog, http://www.scotusblog.com/case-files/cases/glossip-v-gross.
  3. See Dodd, In re Colorado shooting, 2 MPA 54 (2012); Catholic social teaching and public policy, 1 MPA 151 (2012); but see What does the Church really teach about vaccines, n.5, Feb. 4, 2015, http://simondodd.org/blog/?p=1753.
  4. Cf. Joseph Card. Ratzinger, Memorandum to Card. McCarrick on reception of communion, July 2004, http://www.ewtn.com/library/CURIA/cdfworthycom.HTM (last visited March 18, 2015)
  5. Cf. Dodd, Judges and excommunication, 3 MPA 108 (2013).