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Primer and thoughts on the Kim Davis saga so far

We consider the plight of Kim Davis, a county clerk jailed (and subsequently released) for her refusal to issue marriage licenses to same-sex couples.

I. Background.

The Supreme Judicial Court of Massachusetts thrust the issue of same-sex marriage (“SSM”) into the limelight of American politics in November 2003, when it held that the state’s constitution required the state to issue marriage licenses to same-sex partners. 1 27 states thereafter sought to preclude their judiciaries from doing the same thing, enacting constitutional amendments that explicitly precluded SSM, joining Nebraska, Alaska, and Nevada, which had already enacted such language. 2 Those which survived lower-court challenges bit the dust earlier this year when the federal Supreme Court held in Obergefell v. Hodges that if a state issues marriage licenses to opposite-sex couples, the federal constitution forbids that state from denying marriage licenses to same-sex couples. 3

In the Commonwealth of Kentucky, marriage licenses are issued by the  clerk or deputy clerk of the county in which “the female” resides (language, one might note, that was, but is no longer, unambiguous). 4 They comprise, inter alia,  “[a]n authorization statement of the county clerk issuing the license for any person or religious society authorized to perform marriage ceremonies to unite in marriage the persons named; … and the signature of the county clerk or deputy clerk issuing the license.” 5 

Kim Davis was elected as the county clerk of Rowan County last fall. 6 At the time of her election, SSM, which Ms. Davis opposes on religious grounds, 7 was illegal in Kentucky, having been banned by a 2004 state constitutional amendment that was approved by 75% of voters. 8 Like a number of clerks around the country, Davis ignored Obergefell and refused to issue marriage licenses; following litigation by aggrieved same-sex couples to enforce Obergefell, Davis was jailed for contempt of court. 9 

II. The Davis case.

Davis has become a cause célèbre for those who are critical of SSM and/or the Obergefell decision. 10 She is lauded as standing up for “religious freedom,” and sonorous criticisms of Obergefell, the remote cause of the situation, are bruited. But this is the wrong hill on which to die; religious freedom is not at issue in this case, and spinning the Davis controversy as being about Obergefell is unhelpful.

The latter can be dealt with very briefly, and so will be cleared away in limine: Davis’ objection is not to the reason why the law now requires her to issue marriage licenses but rather to actually doing so. She would be in precisely the same position had Kentucky, by the ordinary, legitimate legal processes, repealed its constitutional ban on SSM and enacted a statute authorizing it. In this context, Obergefell is an irrelevant distraction that adds more heat than light. What counts is that the controlling law in Kentucky has changed, obliging Davis to carry out a duty that was not required of her position when she was elected thereto, and that she finds unconscionable.  

The former will require more discussion. The fundamental difficulty with characterizing Davis’ plight as being about religious freedom is that it fails to recognize that she is not acting in a private capacity.

A. The difference between personal and official capacities.

In a certain sense, “the state” does not exist; as an abstract, intellectual construct, it can act only through human instrumentalities: Governors, judges, sheriffs, clerks, etc. To say that “the state” may not or must do something is therefore to say that the humans through whom “the state” acts on that point may not or must do something. To say that “the state” may not refuse to appoint free counsel to criminal defendants is to say that trial judges may not refuse to appoint free counsel; to say that “the state” must read arrestees their rights is to say that policemen must do so; and the personal feelings of the individual judge or constable about Gideon or Miranda can have no relevance to the conduct expected of them. 11 Executive- and judicial-branch officials must follow controlling law even if they believe that that law is wrong, or even illegitimately-made. The rule of law would disintegrate if every government official could decide for themselves what the controlling law was and which cases they recognized as valid. 12 

So, too, if those officials’ personal scruples can exercise a veto over the functions they carry out. Consider a Muslim clerk who does not believe in mixed marriages. Would we think it appropriate for that clerk to refuse a marriage license to a Muslim woman who wished to marry a Jewish man? Or imagine that a Mormon, elected as a state official charged with issuing annually-renewed liquor licenses, refuses to issue any liquor licenses; would that be proper? Government could not function under such conditions and people could not plan their affairs efficiently. To be sure, because these state instrumentalities are human, they have personal beliefs, and I do not slight Davis’—but they cannot control here. When you work for the government, the government works through you; you are an instrumentality. (It is for this reason that R.R. Reno is only narrowly correct to suppose that “Kim Davis poses little threat to the rule of law.” 13 She herself poses little threat thereto, but the principles that are advanced to defend her actions, principles that, if valid, must apply in all similar situations, 14 do.)

And, moreover, whether elected or appointed, your relationship to the government in that context is that the government is your employer, not your government. It strikes me as commonplace that rights you have as a citizen against your government do not automatically become rights that you have as an employee against your employer merely because your employer happens to be the government. That’s why Garcetti v. Ceballos, for example, refused to allow a free-speech claim by a government employee who was fired for speech made in an official capacity. 15 Mr. Ceballos qua prosecutor was not Ceballos qua private citizen; Ceballos had first-amendment rights to speak in a private capacity, but speech produced in an official capacity and incident to his duties was unprotected because, so-to-speak, it wasn’t actually him speaking. In the same way,  Kim Davis qua clerk is not Kim Davis qua private person; she is a hand of the Commonwealth of Kentucky, and the restrictions on what Kentucky may do through her hands necessarily bind her hands. 16 

B. The faulty private-sector analogy.

The comparison has been made between Davis and the private business owners who are now under attack by a campaign that aims to force (for example) bakers to bake wedding cakes for same-sex weddings to which they have religious objections. 17 Whatever one may think of laws that abridge merchants’ absolute right to decide what they sell, when, and to whom (which is simply the obverse of “prevent merchants from discriminating among potential customers”), one cannot doubt that it is more appropriate that government operate under stricter non-discrimination rules than the private sector.

The distinguishing mark of the private sector is the disciplining effect of competitive markets, of supply and demand; if Muhammed’s Grocery doesn’t sell bacon, you simply go to a different store that sells bacon, and if there is no other store that sells bacon, that is an entrepreneurial opportunity: You set up “Jane’s Grocery (we sell bacon),” rake in cash hand-over-pig, and bacon becomes available to local consumers. (Moreover, incidentally, discrimination is inefficient, and businesses that discriminate are at a competitive disadvantage, which means that Muhammed faces strong pressure to either sell bacon or lose market share and moolah. But whether that is a trade-off worth making is, I insist, 100% Muhammed’s business and no one else’s. I support his right to be driven out of business by inefficient choices if he so pleases, and I am appalled by the persistence of laws that abridge his natural right to sell what he likes to whom he pleases. 18)

For that reason, it’s fatuous to talk about a merchant “forcing their views” on someone by refusing them a particular service. Generally, no potential customer has a right to purchase any particular product from any particular merchant, and a spurned customer simply goes to another private company for the same service.

But government is different. Unsurprisingly, government has a monopoly on government; complications of federalism aside, there is one government, and you have no no choice but to deal with it. If Davis owned a bakery as a side business and refused to bake a cake for a same-sex couple, they go to a different baker, 19 but if the clerk’s office that Davis runs refuses a marriage license to the same couple, they have no alternative means of obtaining it. (Davis’ defenders object that the couple could simply go to another city or county; not so, for as we have seen, Kentucky law tethers licenses to county-of-residence.) There is no alternative, competing provider. That’s why it is appropriate that government be bound down by regulations on how it transacts business that I would find repugnant if imposed on private citizens and firms; conservatives are most apt to favor regulation in cases where the market is incapable of operating efficiently which is why even stringent regulations on natural monopolies are uncontroversial. It’s proper to say, as a general matter, that the state may not discriminate, and that if you have a right to a state service (as, under controlling law, same-sex couples presently do), you have a right to receive that service from the ordinary instrumentalities by which the state provides it.

 C. The better private-sector analogy

What’s more, to the extent that the private-sector comparison has any force, think about how this would normally be received in terms of restrictions not on merchants dealing with customers but employers dealing with employees. Think about what precisely is being claimed and how we would ordinarily react to such a claim.

The law changed after Davis was elected; one sympathizes with anyone who finds themselves in a job that, through no fault of their own, is not the one for which they signed up. But Davis is not saying “I was employed to do A and B; my employer now says that I must do C, and, because of my religious beliefs, I will not do C.” Saying that, and accepting the consequences, would be laudable. What she is actually saying (translating her elected position into the argot of private-sector employment) is closer to “I was employed to do A and B; my employer now says that I must do C, and because of my religious beliefs, I will not do C, and my employer cannot fire me because I refuse to do C.”

In any other context, however, conservatives would be skeptical of such a claim. Imagine that a man is hired by a department store’s photography studio as a child photographer, and the department store subsequently says “due to personnel shortages, you will have to take pictures of adults.” And suppose this man says “well, I’m a Muslim, and it would violate my religious beliefs to take photographs of adult women to whom I’m not related.” Or, if that hypothetical doesn’t appeal, consider the recent story of a flight-attendant who, having converted to Islam, sought to avoid serving alcohol to passengers, and was terminated by the airline for which she worked. 20

What comes next in such cases will usually be a swift firing and an even-swifter Title VII lawsuit. But I think that conservatives would be skeptical of such claims. Why? We believe in equality before the law, and that equity means treating everyone the same, and so we are skeptical of special treatment. When Prof. Louis Michael Seidman told a Federalist Society Symposium that I attended in 2007 that equal protection means treating people similarly to the extent they’re the same and differently to the extent they’re different, I would recall there being an audible collective scoff. 21 Discrimination is one thing, but forcing an employer to keep an employee who will not do the work expected of similarly-situated employees is inefficient. If a reasonable accommodation can be made by which Davis does not have to issue the licenses to which she objects while citizens can still get the services to which they’re entitled (more on this anon), it should be made, just as, if reasonable accommodations can be made by which the flight attendant doesn’t have to serve alcohol while customers can still get the services that the airline is trying to sell them, they should be made. That’s proper in a liberal society. 22 But we tend to think dimly of claims that employers have to bend over backwards to accommodate at all costs.

III. A different iteration: Judges

A different situation obtains when judges refuse to conduct weddings, motivated in some way by the SSM issue. For example: In Oregon, a state judge is now under fire for first “instruct[ing] his staff to refer same-sex couples looking to marry to other judges,” and subseqently “decid[ing] to stop performing weddings altogether,” 23 and three years ago, in Texas, a state judge refused to perform any marriages until SSM was legalized in Texas. 24 

I do not see a problem in this iteration, because my understanding is that while judges are typically authorized to marry people, they are under no obligation to do so. If a state offers marriage licenses, qualified persons have a right to be issued that license by the normal state instrumentalities; that’s the problem with Davis and similarly-situated people. But no one has a right to be married at any particular time by any particular person authorized to conduct the ceremony; the function is (as I understand it) purely discretionary. The judge is no more (or, to be sure, less) functioning as an instrumentality of the state in that context than is a priest, a minister, or, in some states, a private individual, and no one would suppose that I am being deprived of something to which I’m entitled if my minister refuses to marry me to my betrothed, notwithstanding that I was entitled to the marriage license from the state. That, I think, is different.

IV. Endgame.

The honorable way out for a person in Davis’ situation is resignation. It isn’t fair; it isn’t right; but it’s necessary. The character of her job has changed, through no fault of her own, to one that obliges her to behave in a way contrary to her beliefs. I sympathize. But while Obergefell is a deeply, deeply flawed decision, it is controlling law until it is overruled, and it seems to me that executive-branch officials cannot pick and choose without the nation descending into anarchy. For that reason, Davis must issue the licenses, or stand aside.

As a postscript, I must add that as this post goes to press, Davis has been ordered freed from jail, subject to the stipulation that she not interfere with the granting of licenses by her deputy clerk(s). 25 Whether it will prove a durable solution and an acceptable compromise that she delegate the task of issuing licenses to deputy clerks (or at least permit them to do so, under compulsion) remains to be seen. It is to be hoped that some such compromise can be found, but I have doubts about the practicalities. 


  1. See Goodridge v. Department of Public Health, 798 N.E.2d 941 (Mass. 2003). I recognize that terminology is a disputed point in the debate, but will use the term SSM for reasons of concision.
  2. See Wikipedia, (last visited Sept. 7, 2015).
  3. 135 S. Ct. 2584 (2015).
  4. Ky. Rev. Stat. § 402.080. If the county clerk is “absen[t]” or the office vacant, the county judge or executive is authorized to perform these duties. Id., § 402.240.
  5. Ky. Rev. Stat. § 402.100(1).
  6. See Const. of Kentucky,  § 99 (county clerk is an elected position); Shayla Menville, Davis following her mother as county clerk, Morehead News, Nov. 7, 2014, (last visited Sept. 8, 2015). As an aside: That article notes that “Democrat Kim Davis defeated Republican John Cox on Tuesday to claim the office of Rowan County clerk as the successor to her mother, Jean Bailey, who has held the position for 37 years.” Talk about a “professional political class”! We always talk about term limits on the national scale, but this kind of unattractive situation in which one person holds a local office for years or decades before exchanging it with an immediate family member is all-too common throughout America.
  7. See generally David Mack, Meet Kim Davis, The Woman Denying Same-Sex Couples Marriage Licenses In Kentucky, Buzzfeed News, Sept. 1, 2015, (last visited Sept. 8, 2015). Davis became a believer in 2011, joining an ecclesial group titling itself “Apostolic Pentecostalism” in 2011. See id.
  8. See Wikipedia, (last visited Sept. 7, 2015). Similarly-lopsided margins characterized most of the amendments that responded to Goodridge.
  9. See Erik Ortiz, Gabe Gutierrez, & Daniellea Silva, Kim Davis, Kentucky Clerk, Held in Contempt and Ordered to Jail, NBC News, Sept. 3, 2015, (last visited Sept. 8, 2015).
  10. See, e.g., Benjamin Siegel, Mike Huckabee: Jailed Kentucky Clerk Kim Davis Fighting ‘Judicial Tyranny’, ABC News, Sept. 6, 2015, (last visited Sept. 7, 2015); Ted Cruz, press release, Ted Cruz campaign website, Sept. 3, 2015, (last visited Sept. 7, 2015).
  11. See Gideon v. Wainwright, 372 U.S. 335 (1963); Miranda v. Arizona, 384 U.S. 436 (1966); but see also Withrow v. Williams, 507 U.S. 680, 711-12 (1993) (O’Connor, J., concurring in part) (noting difficulties with Miranda).
  12. A number of subtleties may be and are here elided; I recognize, for example, that the President of the United States claims authority to decide for himself that a statute of Congress is unconstitutional and what to do about it, see, e.g., Abner Mikva, Memorandum: Presidential authority to decline to execute unconstitutional statutes, Nov. 2, 1994, (last visited Sept. 8, 2015); cf. United States v. Windsor, 133 S.Ct. 2675, __ (Scalia, J., dissenting), and that this is appropriate in the absence of a final decision by the Supreme Court. In my view, however, it being “emphatically the province and duty of the judicial department to say what the law is,” Marbury v. Madison, 1 Cranch 137, 177 (1803), a decision by the Supreme Court is binding upon the executive and judicial branches of the federal and state governments unless and until overruled by that court. Cf. Khan v. State Oil Co., 93 F.3d 1358 (7th Cir. 1996). The Bush administration, for example, might very well have argued in subsequent litigation that some of the court’s Guantanamo Bay cases were wrong and should be overruled, but it was bound to conform its behavior to the law announced by the court even if it thought the law otherwise.
  13. See Reno, Kim Davis’ conscientious decision, First Things, Sept. 3, 2015, (last visited Sept. 8, 2015).
  14. See Dodd, A bootnote on vaccinations and the magisterium, Motu Proprio, Feb. 7, 2015, (discussing neutral principles).
  15. 547 U.S. 410 (2006).
  16. But cf. Connick v. Myers, 461 U.S. 138, 143-144 (1983) (noting that courts have long-spurned Justice Homes’ wisdom that a policeman “may have a constitutional right to talk politics, but he has no constitutional right to be a policeman” in favor of the more flexible, sympathetic doctrine reflected in Connick and Garcetti).
  17. See, e.g., Sarah Larimer, Colorado court rules against baker who refused same-sex marriage cake order, Chicago Tribune, Aug. 15, 2015, (last visited Sept. 8, 2015); Kelsey Harkness, State Silences Bakers Who Refused to Make Cake for Lesbian Couple, Fines Them $135K, Daily Signal, July 2, 2015,; Doug Mataconis, Court holds that wedding photographer cannot refuse service to gay couples, Outside the Beltway, Aug. 24, 2013, (last visited Sept. 8, 2015); Tim Sweeney, State of the LGB[] Movement – The Challenge of Religious Exemption, address to the 2015 “Out and Equal” forum, (last visited Sept. 8, 2015).
  18. Unlike the late Senator Goldwater, who voted against the Civil Rights Act because he believed it unconstitutional (as his canonical book Conscience of a Conservative explains with some force), I would have voted for the Civil Rights Act on the stipulation that it contain a sunset clause. It was proper, it seems to me, as an extraordinary and temporary remedy to an extraordinary problem, but it is now, at best, reaching the end of its useful lifespan. As with the Voting Rights Act, the CRA is remedial legislation, and it cannot be renewed indefinitely predicated on the original motivating conditions. CfShelby County v. Holder, 570 U.S. 2 (2013). The systemic evils that the public accommodations provisions sought to drive out have been driven out, and so the balance of equities now tilts decisively in its natural direction: Toward preservation of the right to free contract. The government has no more right to command you to sell to Jones than it does to command you to buy from Smith, cf. NFIB v. Sebelius, 132 S. Ct. 2566 (2012) (Roberts, C.J.); and so it is, in my view, time for us to start rolling back these  would start looking at removing the existing ones on our way back to normalcy.
  19. Given the realities of globalized commerce, the notion that a gay couple will be unable to find someone to bake their cake doesn’t even rise to the respectability of being wrong; it is anachronistic.
  20. Emanuella Grinberg & Carma Hassan, Muslim flight attendant says she was suspended for refusing to serve alcohol, CNN, Stp. 6, 2015, (last visited Sept. 7, 2015)
  21. Reprinted as Seidman, Gay sex and marriage: The Reciprocal Disadvantage Problem, and the Crisis in Liberal Constitutional Theory, 31 Harv. J. L. & P.P. 135, 137 (2008). My recollection–don’t quote me on this–is that Seidman’s panel was moderated by my favorite federal judge, the honorable (and excellent) Diane S. Sykes of the Seventh Circuit.
  22. See Friedrich Hayek, Why I Am Not a Conservative, (1960) (“what in Europe was called ‘liberalism’ was here the common tradition on which the American polity had been built: thus the defender of the American tradition was a liberal in the European sense”).
  23. Jon Cooper, Oregon judge refuses to perform same-sex marriages, Associated Press, Sept. 5, 2015, ttp:// (last visited Sept. 8, 2015).
  24. Christina Ng, Gay Texas Judge Refuses to Perform Marriage Ceremonies, ABC News, Feb. 24, 2012, visited Sept. 8, 2015).
  25. Chris Geidner, Kentucky Clerk Kim Davis Ordered Released From Jail, Buzzfeed, Sept. 8, 2015, (lat visited Sept. , 2015).

Clinging, perhaps bitterly

Do orthodox Catholics “cling to tradition”? You bet. In a storm, one clings on to whatever is attached firmly to the ship, because the alternative is to be washed overboard. You can’t navigate in a storm; can’t fish, can’t philosophize; all you can do is cling on for dear life and have faith that God will calm the waters when it pleases him that the storm might pass. And so, yes, we cling to tradition and the Mass and all of that—and I don’t take that as an insult even though I’m sure it was meant as one.

A thought on novelty

Alfredo Card. Ottaviani’s episcopal motto was “Semper idem”: Always the same. Ottaviani had the right idea. There’s a quote from his successor at the Congregation for the Doctrine of the Faith, Joseph Card. Ratzinger, that I find difficult to understand: “Today, Christianity is seen as an old tradition, weighed down by old Commandments, something we already know which tells us nothing new; a strong institution, one of the great institutions that weigh on our shoulders.” I fail to see the sting in that line; of course the Church has nothing new to say. That’s one of the things that attracted me to Catholicism in the first place, that signaled to me that it was something that merited serious consideration, in such sharp contrast with those groups falling over themselves to be ephemeral, which is a synonym for “relevant.” A Christianity that claimed to tell us something “new” would be a sham; with public revelation having closed centuries ago with the death of the last apostle, the only possible source of new information is the human mind. If one wants something new, go listen to the Medjugorje people! They’ll give you three new Marian messages a week, and an offer to sell you a bridge in NYC, perhaps. But the true Church, the one, holy, Catholic, and apostolic Church has nothing new to say and never will say anything new or different. And if she did, that would be concerning; Bl. John Henry Card. Newman: “[I]t is one of the reproaches urged against the Church of Rome, that it has originated nothing, and has only served as a sort of remora or break in the development of doctrine. And it is an objection which I embrace as a truth; for such I conceive to be the main purpose of its extraordinary gift.”

If you’re puzzled about the Iran treaty

Ordinarily, when a treaty is proposed, the question is “will the Senate ratify it?” So what’s all this “sixty day review period” business in regard to the Iran deal, and why is President Obama talking about vetoing what Congress does? Here’s the skinny. 

In 2010, Congress enacted sanctions on Iran, subject to waiver by the President at his/her discretion. (It has a long, boring title, but we’ll call it “the 2010 act.”) As negotiations heated up, Congress passed another law (the “Iran Nuclear Agreement Review Act” or the “Corker Act,” but we’ll call it “the 2015 act”) which limited the President’s authority under the 2010 act. This latter act required that if the President should conclude an agreement that obliges Presidential waiver of the sanctions pursuant to the 2010 act, the President could take no such action for a period of time while Congress considered whether it approved of the agreement; for reasons that we can skip, the period of time that actually applies is sixty days. The 2015 act then (inter alia) abrogates the President’s waiver authority under the 2010 act “if, during the period for review … there is enacted a joint resolution stating in substance that the Congress does not favor the agreement.” But if no such joint-resolution is “enacted” within the sixty-day period, the President may thereafter exercise his waiver authority under the 2010 act. It is that joint-resolution on which Congress will vote at some point in the next sixty days.

The problem (perhaps unrealized by the 2015 act’s supporters) is that joint-resolutions are subject to Presidential approval or veto. The President may prevent the “enact[ment]” of such a joint resolution by vetoing it, which will preserve the authority he gained from the 2010 act. It is this veto that the President has threatened to wield. 

Finally, you may wonder what happens to the agreement itself, regardless of whatever drama ensues on the hill. The Senate will not consider and vote upon the agreement itself because it is not a treaty. The significance of this distinction depends upon your vantage-point. From the perspective of American constitutional law, an executive agreement is non-binding: There are disagreements over what exactly a treaty, but only a treaty binds. If this deal is a treaty, it might trigger constitutional obligations; if it’s merely an executive agreement, it can’t. You may remember Senator Cotton’s letter to Iran’s foreign minister a few months back underscoring all this. He was right. The irony, however, is that from the standpoint of international law, such an agreement may well be binding on us, and we may well place ourselves in material breach of international-law obligations if we don’t do what we promised. You may also remember the Iranian foreign minister’s response to Senator Cotton, in which he noted that America would, if it defaulted on promises it made in such an agreement, become an outlaw nation. He, too, may have been right. So, great job, there, President Obama: You have created a situation in which Iran could, with some justification, soon be calling us an outlaw regime.

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?”


  1. See Simon Dodd, The New Ultramontanes,
  2. Cf. Humani generis 20; Lumen gentium 25.
  3. Cf. Simon Dodd, Ordinatio sacerdotalis and its limits,, 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






  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
  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
  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,
  16. G. Campbell Morgan, The Purposes of the Incarnation in 3 The Fundamentals: A Testimony to the Truth 294 (Eds. Torrey & Dixon), available at
  17. Manual, supra, at 97.
  18. Ibid.; 1 Cor 6:20, 7:23.
  19. Heb 9:28.