In the Black, take 2

Musicam antiquam præsento. Received wisdom has it that you can’t “fix it in the mix”; this is an exercise in doing precisely that. The cover of Marian Call’s In the Black that Heather and I did a while back (see my post here) was tracked in late 2011,  but I was unhappy with the mix. I have subsequently learned a lot, so I thought that it would be an interesting exercise to see whether I could fix it up without doing any additional tracking.

Step one was to get the original tracking out of Cubase. Strictly-speaking, my exports weren’t stems insofar as most of them were in mono with no effects or automation, but in terms of approach, I built “stems” for each mix element—so, for example, where I had previously created a comp “track” across several tracks, the several were boiled down to one and then exported with appropriate silence from 0:00 to the beginning of the clip. This took quite a while, and the result was around thirty quasi-stems that I could import into Reaper.

I was then able to clean up some of the tracking and start fresh with no (or very few) effects. For example, the guide guitar track was audible in the mandolin stem, and a combination of a high-pass filter and some gating eliminated enough of it to make it useable. By contrast, the digital clipping on what had been the main rhythm guitar was unacceptable, and those tracks had to be ditched completely; fortunately, I had tracked several guitars and two of them were tracked at lower levels that were mercifully distortion-free. And then there’s some stuff in the middle: All of the guitars were recorded with a dynamic mic, and while all the EQ in the world won’t make it sound great, it (inter alia) can make it prettier than it was. Several levels of compression of varying levels of transparency also helped reign things in.

So: Can we fix it in the mix, Batman? The answer is a qualified “yes.” I could probably improve this mix (it seems a little toppy, I think), but the purpose of the exercise has been met: Some things can be fixed. Some can’t. This mix is a significant improvement; it is clearer and more detailed. Much of the mud and mush that blanketed the original mix is gone. But not all of it, and there is audible digital clipping in places that was impossible to eliminate; this is the fault of the tracking engineer, who, being too inexperienced to have yet realized that the noise floor in digital recording is so low as to be virtually irrelevant, tracked too hot a signal. The tracking engineer also tolerated excessive noise bleed and performances that were looser than ideal; some of this can be “fixed” (i.e. hidden) in the mix, but most can’t be.

The bottom lnie is that this exercise vividly demonstrates what I had already learned since then: The first duty of the tracking engineer is to get clean takes—with plenty of headroom—of every musical performance that will be in the final mix.

 

Rationalizing Pope Francis

Greg Popcak has an interesting post explaining, essentially, “how I learned to stop worrying and love Pope Francis.” It starts out well but comes off the rails, and I can concisely explain why and how.

Dr. Popcak appears to believe that God directs the selection of the pope, and therefore seeks to interpret events harmoniously with that belief (cf. my post here about “interest capture”). While he presents that belief in softer, hedgier language, the point is clear: “I believe the Holy Spirit has a great deal to do with who sits in the Chair of Peter. I believe that God knows what he is doing in the Church and even if the papal election is a very human process, I believe that God wants to use whomever is elected to teach us … something important about being Catholic at this time in history.”

But the Church does not teach that she cannot err in the selection of individual bishops (even the bishop of Rome), and experience demonstrates beyond cavil that she can. From Judas Iscarriot on down to —– Cardinal —— (fill in a name of your preference from the current batch), there have always been “bishops gone wild.” And this goes even for the pope; how can this be denied given the Western Schism, in which competing stems of conclaves elected competing lines of popes? If “the” conclave always chose God’s man, the Western Schism would have ended almost as soon as it began. How can this be denied given that a distressingly-large fraction of papal history is sordid rather than saintly? The Holy Spirit offers guidance to the conclave. So does Roger Cardinal Mahony. So, too, does Screwtape. Whose voice is heeded is for the Cardinals to decide.

Popcak correctly notes the ground-level effect of papal scandal, and adds some examples from his own practice (under his sub-heading “But…”). But a scandalous pope is in tension with his ex ante commitment to an infallible conclave, as I think we have to call it. (“Infallible” in the sense that if one believes that God uses the pope “to teach us … something important about being Catholic at this time in history,” one must therefore believe that the Conclave will perforce select the man whom God intends to use “to teach us … something important about being Catholic at this time in history.”) How, one would reasonably ask, could scandal be God’s will?

This creates cognitive dissonance, for both propositions cannot easily be true. What one needs is a way out: A way to conclude that while they look scandalous, Francis’ actions serve a greater good. How might this be done? Well, Popcak does it (under the subhead “Convicted“) like this: “Francis is bringing home the lost children, the lapsed and fallen-away.” (That’s my paraphrase, not a direct quote.) Alas, his own experiences show the limits of that idea. What is step one in recovery? The first step is always (and perforce must be) acknowledging, on a conscious level, that you have a problem. If a lapsed Catholic can take shelter under the rubric “I’m much more of a Pope Francis/Nancy Pelosi Catholic” (that one is a direct quote), then they are even less likely to return home, because they think that they are already home. The prodigal son, if he is to be invoked, was at least in a situation in which he knew that he needed to return. Is Francis “bring[ing your] brothers and sisters home,” Greg? You’ve just told us that you have met people whom Francis is helping to feel more comfortable in their pig-pen! It is certainly true that there will be people who start calling themselves Catholics again during this pontificate, and perhaps attending Mass, but they do so because they (incorrectly) perceive Francis to have declared their heretical position to be within the boundary of the Church, that is no gain—indeed, it is, at least in possibilitate, a loss.

But the fine-grained details that run to the contrary are ignored. Naturally; they are inconvenient. Thus, one might say that while many faithful Catholics have rationalized (plausibly vel non) that “Pope Francis is showing” that the “Church’s teachings on love, sex[,] and marriage are[ ] true,” it requires an exercise in wilful denial to pretend that others—the very “prodigals” whom we are supposed to think are being reconciled—see precisely the opposite: That Francis is tipping his hand that the “Church’s teachings on love, sex[,] and marriage aren’t true.” (Just look at how the New York Times and the National Lapsed-Catholic Reporter is lapping up every word.) The denial must be even stronger when one has personally faced people who are visibly becoming even more entrenched in their pig-pen, becoming visibly less likely to say to themselves “I shall return to my father’s house,” as a result of this pontificate. But such details are an obstacle to the rationalization that allows Popcak to account for Francis within his “infallible conclave” paradigm, and while the race isn’t always to the swift nor the fight always to the strong, that’s the way to bet, and in the contest between ex ante commitments and inconvenient facts, one should bet on rationalization every time.

Tape and tradition

This is a post about audio recording and tape that becomes a post about politics, tradition, and the reform of the reform.

Last week, I posted my recording of 74/75; I sent a copy to my parents with the observation that it surprised me that so much of the sound for which I’d been looking was tape, and that it must bemuse folks like Alan Parsons and George Martin that we now spend so much time trying to recapture the sound of equipment against the limitations of which they wrestled. My dad commented that I should perhaps, therefore, have tried to keep hold of his old reel-to-reel machine.

Well, not really, I said. I’m not all that interested in tape, per se, which is expensive and difficult. 74/75 was deliberately (whether successfully or not I can’t say) framed on vintage lines; it was tracked in a few takes with only a few edits, and mixed as nine tracks with the drums bounced to a single track (and it could have been done as eight tracks without violating the spirit of the project by ADT’ing rather than double-tracking the vocal—a Beatles/Martin innovation, I should have thought). For even an eight-track tape studio, however, one would be thousands of dollars into it before recording a second of tracking (the Studer A800, for instance, eats tape at between 7.5 and 30 inches per second) and making the few, simple edits that I made would have taken long mintues if not hours of patient work with razor blades instead of seconds with a mouse click.

So it’s not tape that interests me so much as it is sound—what is that magic extra ingredient in older recordings? Tape is a large part (although not the only part) of the answer. And happily, it seems that everyone else has already figured this out, and has done the work of analyzing exactly what that sound is (“never mind that man behind the curtain! It’s magic, I tell you!”), which means that there are various plugins that approximate the sound. The good ones aren’t free; some of the free ones aren’t bad.

More broadly, I’m interested in the question of which pieces of the past should be reclaimed and carried with us into the future? The sixties and early seventies seem a golden age of recording in hindsight; we got used to the sound of tape, and we forget what a nightware it was to work with and how limiting it really was. We discount how incredibly convenient digital is.

And this shades into an observation that on politics and postconciliar Catholicism: The conservative and the reactionary take similarly-dim views of change, and we both look to the last fifty years of radical change in the Church and society with dismay, but we disagree, I think, on what to do about it. The reactionary mistakes rose-tinted nostalgia for a golden age to which we can and should return, whereas the conservative, it seems to me, knows that this is impossible even if it might be desirable. (We differ among ourselves on whether it would be desirable; I tend to think that the 1950s, for example, might lack the gleam that some perceive if one should have been female, black, Jewish or Catholic, gay, etc., and it would be a serious error to suppose that the Tridentine Mass, for example, was always beautiful.) We know, as Clinton Rossiter put it, that “change is the rule of life among men and societies, but [w]e insist[ ] that it be sure-footed and respectful of the past.” We also recognize that it isn’t just a question of not setting aside any more, that some things were set aside and must be reclaimed now if they are not to fade from memory and experience and thus lose their organic connection to society (and society to them). As we look back at fifty years of change, we are not seeking, as the reactionary does, to turn back the clock, but to instead ask: Which pieces of the past should be reclaimed and carried with us into the future?

On meeting Archbishop Tobin

This week, Archbishop Joseph W. Tobin celebrated the Woods’ opening day Mass. How can I explain why it was such a big deal to me to meet Abp. Tobin—why I felt (and, alas, may have acted) like a schoolgirl meeting a pop sensation? It isn’t because he’s an impressive man, although he is that; he has won universal acclaim in an increasing balkanized church.

I have been seeking a way to explain it my wife (who is an evangelical, and is thus pleasantly bemused by such things) and to non-Catholic Christian friends. I tried it this way: Suppose, I said, you were to meet the Apostle St. James. Imagine how it would feel—perhaps he is an impressive man, doubtless he is, but what is more important is that he was commissioned by Our Savior to represent Him to you! Jesus sent him! To you, I said! Well, I said, James in turn commissioned and sent to you Symeon; Symeon, in turn, sent Justus, who sent Zacchæus, who sent Tobias, who sent Benjamin, who sent John, who sent Matthias, who sent Philip, who sent Seneca, who sent Justus, who sent Levi, who sent Ephres, who sent Joseph, and so on. (Eusebius, 4 H. Ecc. 5.) Christ “was sent forth by God, and the apostles by Christ,” wrote St. Clement at the conclusion of the first century, appointments “made in an orderly way according to the will of God. Having therefore received their orders, and being fully assured by the resurrection of our Lord Jesus Christ, and established in the word of God, with full assurance of the Holy Ghost, they went forth proclaiming that the kingdom of God was at hand. And thus preaching through countries and cities, they appointed the first-fruits of their labors, having first proved them by the Spirit, to be bishops and deacons of those who should afterwards believe.” (1 Clem.)

So, I explained, he isn’t just Joe Tobin, a man of his own merits, or even just Archbishop Joseph W. Tobin, the duly-appointed shepherd of the geographic portion of the Church in which I am located. No, to stand before him is to stand before bishop Joseph Tobin: who was sent by Tarcisio Cardinal Bertone, who was in turn sent by Archbishop Albino Mensa, who was sent by Archbishop Albino Mensa (+1998), who was sent by Bishop Gaudenzio Binaschi (+1968), who was sent by Bishop Giuseppe Castelli (1943), who was sent by Agostino Cardinal Richelmy (+1923), who was sent by Gaetano Cardinal Alimonda (+1891), who was sent by Archbishop Salvatore Magnasco (1892), who was sent by Gustav Cardinal Hohenlohe-Schillingsfürst (+1896), who was sent by Pope Pius IX (1878), who was sent by Francesco Cardinal Castiglioni (+1830), who was sent by Giuseppe Cardinal Pamphilj (+1816), who was sent by Buenaventura Cardinal Córdoba Espinosa de la Cerda (+1777), who was sent by Archbishop Manuel Quintano Bonifaz (+1774), who was sent by Enrique Cardinal Enríquez (+1756)… And so on, in lineal succession all the way to the eleven, and thence to Christ, and thence to the Father. To stand before Tobin, then, is to stand before a successor of the apostles in the most literal sense imaginable; for this reason, the Second Vatican Council reminds us: “bishops by divine institution have succeeded to the place of the apostles, as shepherds of the Church, and he who hears them, hears Christ, and he who rejects them, rejects Christ and Him who sent Christ.” And who meets them… The apostolic succession is not some abstract principle or intellectual construct, but of the most tangible character imaginable.

Yes, of course, men are but men, and there have been unworthy men consecrated as bishops. But that is beside the point. The Tractarian John William Bowden explains this point beautifully in a passage that I quoted recently:

“Since the Apostolic age [twenty] centuries have rolled away … and, blessed be God, the Church is with us still. Amid all the political storms and vicissitudes, amid all the religious errors and corruptions which have chequered, during that long period, the world’s eventful history, a regular unbroken succession has preserved among us ministers of God, whose authority to confer the gifts of His Spirit is derived originally from the laying on of the hands of the Apostles themselves. Many intermediate possessors of that authority have, it is true, intervened between them and these, their hallowed predecessors, but the gifts of God are without repentance; the same Spirit rules over the Church now who presided at the consecration of St. Paul, and the eighteen centuries that are past can have had no power to invalidate the promise of our God. Nor, even though we may admit that many of those who formed the connecting links of this holy chain were themselves unworthy of the high charge reposed in them, can this furnish us with any solid ground for doubting or denying their power to exercise that legitimate authority with which they were duly invested, of transmitting the sacred gift to worthier followers.
. . . .
“The unworthiness of man, then, cannot prevent the goodness of God from flowing in those channels in which He has destined it to flow; and the Christian congregations of the present day, who sit at the feet of ministers duly ordained, have the same reason for reverencing in them the successors of the Apostles, as the primitive Churches of Ephesus and of Crete had for honouring in Timothy and in Titus the Apostolical authority of him who had appointed them.
. . . .
“Wonderful indeed is the providence of God, which has so long preserved the unbroken line, and thus ordained that our Bishops should, even at this distance of time, stand before their flocks as the authorized successors of the Apostles.” (Tr.5.)

Toward the end of my conversion process—the clincher, really—I had an experience with Tobin’s predecessor, Archbishop Daniel Buechlein. (I regret that I never had the chance to Buechlein this, but I did tell Tobin and found a certain sense of relief in that.) I had done a lot of book learning and absorbed on an intellectual level all this business about apostolic succession. But it didn’t really sink in, I didn’t internalize it, until I was at a conference a few years ago at which Abp. Buechlein gave the benediction. He walks in, unassuming as can be, up to the podium and looks around with that wan smile on his face—we didn’t yet know it, but he was pretty sick by then—and it suddenly hit me like a ton of bricks: I’m standing in front of a successor of the apostles! And it wasn’t something abstract or intellectual, it suddenly became viscerally real and personal. It was a sudden moment of realization that this wasn’t abstract theory, but rather was something that I judged to be true, and which had enormous consequences for what I had to do next in my “walk,” as my wife would phrase it. I had another moment like that yesterday, receiving communion from Tobin—there are moments in life when all this stuff that we talk about in abstract, intellectual ways suddenly obtain the concrete, pinpoint focus of a laser beam and become incredibly, uncomfortably real.

74-75

Musicam novam præsento. Years ago, “the Connells” were a one-hit wonder with 74-75; I have no idea what it’s about, but I loved the song. I’ve been evaluating Reaper as a new DAW, and I wanted to try recording a piece that used a single track of guitar rather than layers and a piece with a more vintage sound. 74-75 popped into my head.

So here it is; I think it sounds pretty good. My concept was that each channel—not just the buss—ought to be fed through tape emulation. To that end, the string section was fed through Modern Plugins‘ Modern Analoguer, and the drums, bass, guitars, and vocals were fed into Jeroen Breetbaart’s Ferox.

In terms of VSTi, the drums are Addictive Drums, fed into Modern Plugins’ 1176N clone, the Seventh Sign, and thence to Ferox; the strings are two violins from DSK strings and two cellos from Soundkey Cellofan. The bass and electric guitar were recorded through a Fender Greta that I’ve taken to using as a tube preamp; the mic, too, is powered by a Bellari tube preamp.

Lastly, the mastering chain: Modern Plugins’ SSL G384 clone, the Apophis, set on Mix Buss 2, VoS’ Thrillseeker set to the LA Sweet Spot, and VoS’ Ferric—another tape emulation—set to Final 2.

I’m pretty happy with how this worked out. Here’s the channel list:

1. Drums (bounced down)
2. Bass
3. Main guitar (widened with Voxengo’s StereoTouch)
4. 12-string guitar
5. Electric guitar
6. String section (bounced down)
7. Vocal (this and next two tracks each compressed with Digital Fishphones’ Blockfish)
8. Vocal double-track
9. Baritone vocal

Cruz’s eligibility

Over at SF, I have a post on the Presidential eligibility (vel non) of Sen. Ted Cruz (R-Tex.).

In re removal of Rev. Iwanowski

The New Jersey press reports that Father Thomas Iwanowski, a priest of the Archdiocese of Newark, is being removed and transferred by the Archdiocese after he allowed another priest to live temporarily in the rectory. The other priest, Monsignor Robert Chabak, was accused a decade ago of an incident of abuse that allegedly took place in the 1970s. Since the abuse scandal, radars are set to a hair trigger with regard to anything involving abuse or the suggestion of it, and not inappropriately-so, cf. The Finn Indictment, 1 MPA 51 (2012). Moreover, I am sure that Archbishop Myers has better information than I do, and so I must be careful to keep my remarks conditional. Nevertheless, it’s not clear to me that Fr. Iwanowski’s error merited removal.

The story reported by NJ.com is that from sometime after October 28, 2012 until February 2013, a period of roughly three months, Iwanowski permitted Msgr. Chabak to stay at the rectory because the house in which he had been living had been rendered uninhabitable by Hurricane Sandy. Like many others, Chabak had become a refugee, cf. CCC ¶ 2447. Chabak, for his part, had been accused of having committed abuse in the 1970s—accused. Unnamed officials concluded in 2004 that there was credible evidence, but he was never “convicted,” figuratively or literally; not every allegation is true, not everything that is plausible is credible, and not everything that is credible is factual.

Nevertheless, even the accusation can be a source of scandal, and Iwanowski wisely sought the opinion of the archdiocese before hosting Chabak. This is important: Iwanowski did not act alone. He sought permission from the Archdiocese, which agreed to the arrangement “out of a sense of compassion.”

And now the Archdiocese is punishing Iwanowski for doing something to which it assented only months ago. Worse yet, they are not only cutting off Iwanowski at the knees, but also his successor, insofar as the appearance is that they removed him at the behest of a malcontent layman. I have no brief to defend a priest who permits Mass to be accompanied by “a live band of drums and … guitar,” but to fault Iwanowski’s compassion would seem churlish if he had done it without the archdiocese’s permission; it would seem unjust if the archdiocese gave permission. From priest to patsy.

Episcopal authority and the abuse crisis

The bishop of Kansas City, his excellency Bp. Robert Finn, is a favorite and frequent target of dissenters; his conviction provides a focal point and a face for the abuse crisis, even though he’s something of a patsy, as I’ve noted before. See The Finn Indictment, 1 MPA 51 (2012). Elsewhere, it was suggested that Finn’s failure to act destroys his governing authority. “In the early church,” it was argued, “authority came from the laity, who elected their bishops,” and a bishop who loses the confidence of the laity thus loses his authority. Such a bishop may “retain[ ] the legal powers, but his authority is gone.”

I understand the distinction between “authority” and “power,” but it founders. It would be well-taken if we were speaking about political office: Richard Nixon, for example, retained all the legal powers of the Presidency until his resignation, even as his moral authority evanesced. The temptation to make the same distinction in an ecclesiastical context is natural: The egregious Bernard Card. Law, for example, might be said to have lost his “moral authority.” But if “moral authority” means something like “that effervescent charisma of leadership that comes from human reputation,” Cardinals Law and Mahony never had it, and Bp. Finn does not depend on it. The “moral authority” of a bishop rises from the same spring as his core “legal authority.” (“Core” insofar as exercise of faculties in a particular diocese comes from human authority, to wit the Holy See.) Vatican II teaches:

“Jesus Christ, the eternal Shepherd, established His holy Church, … and He willed that their successors, namely the bishops, should be shepherds in His Church even to the consummation of the world. … Bishops, therefore, … presid[e] in place of God over the flock, whose shepherds they are, as teachers for doctrine, priests for sacred worship, and ministers for governing. And just as the office granted individually to Peter, the first among the apostles, is permanent and is to be transmitted to his successors, so also the apostles’ office of nurturing the Church is permanent, and is to be exercised without interruption by the sacred order of bishops. Therefore, this Sacred Council teaches that bishops by divine institution have succeeded to the place of the apostles, as shepherds of the Church, and he who hears them, hears Christ, and he who rejects them, rejects Christ and Him who sent Christ. … The laity should … promptly accept in Christian obedience decisions of their spiritual shepherds, since they are representatives of Christ as well as teachers and rulers in the Church.” (LG18, 20, 37; cf. LG6, 14.)

So the bishop’s moral authority arises not from the man but from his place in the episcopal line, and whom he represents—that is why the miter matters, for example. See Authoritative teaching, liturgy, and authority, 3 MPA __, __ (2013) (“The miter is the symbol of the bishop’s authority; it is a reminder that we are not listening to this man because he is learned or holy or likable or because we agree with him”).

It was never true, incidentally, that in the early church, “authority came from the laity, who elected their bishops.” It is true that in some stages of the church, bishops were chosen by “election” of cathedral chapters and other ecclesiastical bodies; it may be true, although I don’t know one way or the other, that some such elections included laymen. But that practice can safely be taken to be an aberrational response to circumstances, not (as it is too often presented) as a model. See The Selection of Bishops, 3 MPA __ (2013). It was a situation that arose during period in which the Church could not be ruled as she once was and now can be again, a state that was lost by expansion and regained through technology. In scripture, however, we glimpse a straightforward model that comports with common sense and sounds familiar enough when translated into the modern ecclesiastical argot: The episcopal college chooses its own successors, and the Church appoints bishops and priests to particular dioceses and parishes. Cf. Acts 1:15-26, 14:23; Titus 1:5. (Unsurprisingly, this is also the model we see in First Clement.)

So Finn retains the full authority of a bishop, and it isn’t hard to see why that must be so. If episcopal authority could be compromised by failure or personal sin, the church would have lapsed centuries ago; where is the threshold? They say that hard cases make bad law, but sometimes easy cases make even worse law, because easy cases can obscure the subtleties of a rule’s application to muddier facts. The graveness of the sin and the proximity to the act are clear enough in the Finn/Ratigan case. But what about a case in which the sin of the priest is less clear? What about a case in which it took place in a suffragan diocese and, the suffragan being paid up with the right (i.e. left) people, the metropolitan is accused of not doing enough? What about a case in which the bishop is simply accused of the last, worst resort of those with an ax to grind, the “he didn’t do enough” canard? What we get is a mushy, inherently-manipulable standard that will always be susceptible to use in covering those who wish to disobey a given bishop.

The last word on the point may safely be given to John William Bowden’s Tract for the Times #5:

Since the Apostolic age [twenty] centuries have rolled away … and, blessed be God, the Church is with us still. Amid all the political storms and vicissitudes, amid all the religious errors and corruptions which have chequered, during that long period, the world’s eventful history, a regular unbroken succession has preserved among us ministers of God, whose authority to confer the gifts of His Spirit is derived originally from the laying on of the hands of the Apostles themselves. Many intermediate possessors of that authority have, it is true, intervened between them and these, their hallowed predecessors, but the gifts of God are without repentance; the same Spirit rules over the Church now who presided at the consecration of St. Paul, and the eighteen centuries that are past can have had no power to invalidate the promise of our God. Nor, even though we may admit that many of those who formed the connecting links of this holy chain were themselves unworthy of the high charge reposed in them, can this furnish us with any solid ground for doubting or denying their power to exercise that legitimate authority with which they were duly invested, of transmitting the sacred gift to worthier followers.
. . . .
The unworthiness of man, then, cannot prevent the goodness of God from flowing in those channels in which He has destined it to flow; and the Christian congregations of the present day, who sit at the feet of ministers duly ordained, have the same reason for reverencing in them the successors of the Apostles, as the primitive Churches of Ephesus and of Crete had for honouring in Timothy and in Titus the Apostolical authority of him who had appointed them.
. . . .
Wonderful indeed is the providence of God, which has so long preserved the unbroken line, and thus ordained that our Bishops should, even at this distance of time, stand before their flocks as the authorized successors of the Apostles.

Authoritative teaching, liturgy, and authority

Elsewhere, it was suggested to me that authority “seems to be a major element of Catholic belief” for me, as does liturgy. I gave a lengthy explanation of my views on authority in The Catholic proposition, 2 MPA 77 (2012), but some additional remarks will not hurt.

I.

Authority, in the sense of the sources of authoritative teaching, is not simply a major element of Catholicism—it is the element. It is the decisive question between various Christian groups, the hinge upon which the entire matter turns. 1 After I became a Christian, it became immediately apparent that one cannot simply declare oneself a Christian and stop there, because there are myriad groups that style themselves as Christians, and most of them have mutually-exclusive things to say about what it means to be a Christian. One of them must be right. The rest must, perforce, be wrong. (Not wrong about everything, of course!) So which one is right?

As I tried to figure it out, perhaps the most useful thing that I read was a book by the evangelical theologian J.I. Packer, Fundamentalism and the Word of God. The decisive question that a Christian must answer, says Packer, is this: Where may we look for answers? What is authoritative in the Christian faith? There are a few candidates, he says. There’s the Catholic/Orthodox answer, and there’s sola scriptura. (He does identify a third, the approach of liberal protestantism, but since Packer wrote, that approach has lapsed into bankrupcy.) He concludes that the Catholic answer is wrong, and I respect that. Over the next couple of years, however, I was forced to conclude that sola scriptura is untenable. Packer’s conclusion was wrong. But he had asked the right question, and one of these days I must send him a letter thanking him for his perspicacity and prescience in asking precisely the right question. If scripture is the sole authority to which a Christian may turn, the Orthodox and Roman Catholic Churches are the tools of the Enemy and we must flee from them as fast and as far as our legs will carry us. If, however, the Catholic Church’s assertions about her authority are true, if those claims are correct, then we must be in full communion with her.

Why do I say that? Well, because the Catholic Church—or, more precisely, the so-called “hierarchy” thereof, which we generally call “the Church” for short—claims to teach with authority. 2 She explicitly claims to be the repository of Sacred Tradition and the custodian and authentic interpreter of Sacred Scripture. 3 She claims the right to govern the Christian community. If she has not received that authority by Christ she does not have it; accordingly, her pretense to it and actual exercise of it would be an affront to God that has lead millions of souls to their ruin. If our protestant brethren were correct that the sole rule of faith is scripture, and scripture alone, interpreted by itself, then the Church is the best trick that Satan ever played: The vast majority of Christians who have ever lived have been led wildly astray by an instrument that must, perforce, be infernal.

Accordingly, every person who becomes a Christian has a simple and straightforward choice to make. They must confront the Catholic Church and decide whether she really is what she claims to be, to the best of their judgment, knowing that their salvation may well depend on their answer. 4 If  you conclude that she is not: Run. Run fast and far. If you conclude that she is: Come closer. 5

There is no room, none whatsoever, for mushiness on this. There is no principled middle ground. Nor is there a way to avoid the question: Unless you received the faith from Christ personally, studying at his feet during his public ministry on Earth, you are entirely dependent upon the answer to the question of authority: For those of us who live between the ascension and the second coming, there is absolutely no way for us to know Jesus without answering the question of authority. Where can we learn the faith? Where do we find Jesus? How does He supply answers to our questions? Do we find Him and our answers solely in the Bible, as our protestant brethren insist? Or do we hear Him through the bishops, as the Church now insists, as Vatican II insisted, 6, as the Church has always taught, as our Orthodox brethren agree, and as Christ Himself tells us in scripture? 7 To what source may we turn for authoritative guidance on the faith? Does the Bible alone have authority? Or does the Church? Every Christian who lives between the ascension and the second coming must face and decide, with honesty, candor, and awed fear, the question of authority, and if you have not  answered that question consciously, I must suggest to you that you have answered it subconsciously and thus, perforce, inadequately.

II.

Now, let me say a couple of words about the liturgy. I have said that we cannot fix—we will fail to fix—the Church if we do not first fix the liturgy. Ecclesiam non poterimus reparare nisi liturgiam primo reparamus. If we get the liturgy wrong, we get everything wrong. If we don’t understand our relationship to God in the setting of our purest, most direct and intimate encounter with him, the Holy Sacrifice of the Mass, the source and summit of our Christian lives, 8, how can we expect get anything right? And if we structure the externals of the liturgy in ways that do not reflect the ontological realities of what is happening in the Mass, how can we claim with a straight face that we understand those realities and that relationship?

And how, come to think of it, can we seriously profess surprise that our children do not absorb those truths? One of the wonderful things about children is that they have a sensitive bullspit alarm. When they hear a person say how the Mass is the sacrifice of Calvary and makes Christ really, truly, substantially present, and yet they see a manner of celebration that reflects anything but that conviction, they might not say anything, but they do internalize it. They conclude that you’re full of it.

I’ve asked this question of “liturgists” and “liturgical musicians”: If the second coming was happening next Sunday, right here, in this church, at 9am, and you were in charge of the music, tell me honestly: Are you really going to have a half-hearted guitar strumming some treacly David Haas song? Please! This is the king of kings! Our Lord and Savior! Are you really going to tell me that you’re going to greet him with the insipid, vacuous dribblings of Dan Schutte? Or are you going to break out the Palestrina and get the choir up to speed as fast as humanly possible? We all know the answer to that one. Well, guess what: Next Sunday, right here, in this church, at 9am, Jesus will be present—really. Truly. Physically. And how you would propose to greet him will tell us everything about whether you actually believe that or not.

So the way that we treat the Mass speaks volumes about what we believe about the Mass, and what we believe about the Mass screams what we believe about God. THAT is why the liturgy is so important. The enemies of the liturgy must be defeated because they are in fact, through their liturgical views, telling us that they are enemies of the faith, and we cannot let the faith be held hostage by those whose actions—no matter what they claim with their lips—confess that they do not share that faith.

III.

I should also say something about the context in which all this arose: Authority in the sense of governing. I had expressed some dissatisfaction at the choice of Pope Francis to not wear his miter during his inaugural homily. The miter is the symbol of the bishop’s authority; it is a reminder that we are not listening to this man because he is learned or holy or likeable or because we agree with him, or any of the myriad reasons that one might choose to attend, say, a TED talk. We listen to him because of the office that he holds and the ministry that is discharged through him. He exercises a ministry that is contingent on no earthly power; he holds a warrant that defies and defeats all earthly powers. And for that reason, the symbols of that office should not be omitted, because we must not lose sight of the fact that we are not listening to Jorge Bergoglio, but to Christ speaking through Peter speaking through Francis. This is not a question of fashion; the miter isn’t simply a hat. The symbols of office matter because while these men may be good witnesses or not based on something in themselves, they are bishops by grace of God, not the assent of the faithful.

Oh, nonsense, it was asserted in response: True power comes from service. 9

No, it does not. Ecclesiastical authority comes from the divine constitution of the Church; none other. If a man should come up to you on the street and say “your book is wrong, you must recant,” you are not obliged to listen to a word he says. If he should be the retired Cardinal Archbishop of where-have-you, you are nevertheless under no obligation to listen to him, because titles, even ecclesiastical titles, confer no authority whatsoever. If his eminence famously spent his entire priesthood as the most famous do-gooder in the world, if he has stored up great treasure in heaven having done fantastic works of mercy, corporal and spiritual, perhaps you will listen to him because you are personally impressed with him, but you are nevertheless under no obligation to listen to him, because works, even mighty works, confer no authority whatsoever. But if that man instead turns out to be your bishop, or the bishop of Rome, or a duly-designated representative of the duly-designated relevant dicastery of the Roman Curia, then you are under an obligation to listen to him, not because he is important as a man, or because he is impressive as a man, or a single thing that qualifies him as a man, but because you are a sheep and the office he holds has made him your a shepherd. 10

Oh, well, it was rejoined, but Jesus did not distinguish His mission by his clothing. Jesus did not need to “distinguish His mission by his clothing or accouterments of office” because he is God! 11 He had the sovereign’s plenary authority to order relationships and people in any way he saw fit. But by what authority does a mere man claim such authority over any other man against the latter’s consent, constructive or actual? Only by the authority of the sovereign, God, who has constituted the Church as a society governed by the bishops.

Accordingly, men exercise ecclesiastical authority over other men only insofar as they are the duly-appointed holders of an office possessing such authority that has been duly-constituted by the Church, or belongs directly to her divine constitution. The duly-elected successor of Peter, as the universal pastor of the Church, has authority over the universal Church because the petrine office belongs directly to the divine constitution of the Church, and a duly-appointed bishop has authority over his diocese because the Church has duly ordained that the world be divided into discrete geographical areas with each shepherded by a duly-appointed bishop, and has constituted dioceses as a juridical expression of that ecclesiological judgment.
That is why Archbishop Vigneron of Detroit (for example) has no authority whatsoever over me, though he may well be a very learned and holy man for all I know, and yet Archbishop Tobin of Indianapolis does. I like Archbishop Tobin, moreover, but the day that he ceases to be the Archbishop of Indianapolis, I will no longer be subject to his authority, because in a different post, he will have no duly-constituted authority over me. By the same token, had I lived in Los Angeles during the odious Cardinal Mahony’s tenure, Mahony would have had authority over me even though he be a mindless tool of the devil, and yet any number of holy and learned successors of the apostles would not, even though they are surely more worthy than Mahony. Ecclesiastical authority is in no way dependent on the man—is is a function of the position he holds and the grace of the Holy Spirit given to him in his consecration to the episcopate, in which he receives the fullness of the sacrament of Orders. 12

Notes:

  1. Cf. “Why I am a Catholic” in a few brushstrokes, 2 MPA 1 (2012).
  2. Cf. Lk 4:32.
  3. E.g. Dei verbum, no. 10 (2d Vat. Co., 1962).
  4. “We can believe what we choose,” John Henry Card. Newman said, and “we are answerable for what we choose to believe.” Quoted in Edward Short, Newman and His Contemporaries 135 (2011)
  5. I must acknowledge that some of the best Christians I know are not Catholics. They have considered the question and, to the best of their judgment, before God and man, they conclude that the Catholic Church is not what she says she is. And I respect that. Still others are trying to figure it out; they have made a tentative decision (you have to make at least a provisional decision on any big, life-affecting question while you figure out the answer), and they’re actively working toward an answer. And I respect that, too. I can respect almost any position that is the product of a coherent and reasonable thought process, even if I disagree with it. It is somewhat harder to respect the position that many take, which is to completely ignore the question while tacitly (i.e. practically) answering it and wishing that the whole problem would go away, even as it knaws through their soul and riddles their faith with cracks and deformities, creating doubt, dissent, and scandal. Cf. MP: Revealed preference and the peril of interest capture, 1 MPA 7, 9 (2012). Small wonder that many of those who refuse to face this question directly remain nominally Catholic yet can’t quite bring themselves to believe what Catholics believe and do what Catholics do! It seems to me that one cannot have a firm foundation as a Catholic until one has first decided whether the Church to which they profess membership is or is not who she says she is, and what consequences follow from that belief .
  6. See Lumen gentium, no. 20, 57 AAS 5, __ (2d Vat. Co. 1964).
  7. See Lk 10:16.
  8. LG11, 57 AAS, at __.
  9. For the record, that is a corrupted reference to Francis’ inaugural homily, in which the Holy Father told us, albeit miterless: “Let us never forget that authentic power is service, and that the Pope too, when exercising power, must enter ever more fully into that service which has its radiant culmination on the Cross.”
  10. Cf. MP: Episcopal competence and the public policy nexus, 2 MPA __ (2012); MP:  Catholic social teaching and public policy: Presuppositions, institutional settlement, and the competency of bishops, 1 MPA 151 (2012).
  11. See, e.g., Phil 2:6.
  12. CCC ¶ 1557.

The NSA programs: Deference, secrecy, libertarians, conservatives, and the Fourth Amendment

In the last month, leaked documents have revealed the existence of two government surveillance programs which collect “metadata” (i.e. “data that describes data”) about customer telephone calls and email from the TelCos and ISPs that route the data. For now, the details aren’t important; we’ll get to that when we talk about these programs and the Fourth Amendment.

First, however, I want to deal with some of the surrounding issues, because As I have written about these stories elsewhere (usually under the tongue-in-cheek rubric of “Obamascare”) I have noticed two familiar themes coming out, both of which originate from the epistemological skepticism that I have described in previous posts: Deference and conservatism.

I. Deference and secrecy

Over the years, I have been faulted for showing excessive deference to some classes of experts, and, by an almost entirely different group of critics, for showing too little deference to other classes of experts.

On the one hand, I have emphasized the importance of Congressional deference to expertise. This has typically come into play in arguments about the military, in regard to which I have faulted Congressional activism on the grounds that Congress has neither appropriate incentives nor expertise to wisely exercise its unquestioned power over the military. In such a situation, wise managers defer to counsel. I have therefore derided Congress for decisions to purchase what the military doesn’t want (or to scrap that which it does), or to impose (or prohibit) the so-called “Don’t Ask Don’t Tell” policy. Such things are “interference”:

I believe that we should give a great deal of deference to the professionals in a given field—the people who are hands-on, the people on the front lines. … For a fairly extreme example, an issue on which I find it appropriate that my position is [unqualified] deference to the professionals, my position on “Don’t Ask Don’t Tell” is essentially “whatever the military wants.” If the military want it, [10 U.S.C.] § 654 should stay; if they want it gone, it should be repealed. I have no idea if gays serving openly in the military is good, bad, or indifferent to the ability of the military to conduct operations. Congress certainly doesn’t. And if you aren’t presently serving on active duty in the United States military, neither do you. The best judges of what hurts the operational readiness of the United States military and what helps it—the sole criterion where this issue is concerned—is the United States military themselves. Their word should be decisive.

… [T]hat’s an extreme if not unique example [of my willingness to defer]…. I counsel deference[] in the proportion dictated by specific context, not abdication of judgment. The military is an exceptional context, given their mission and the imminent risk to their lives and limbs; it accordingly gets exceptionally high deference. 1

The limits of Congressional competence, especially when amplified by institutional dysfunction, demand that Congress must exercise its authority to “raise and support armies, … provide and maintain a navy[, and] … make rules for the government and regulation of the land and naval forces” delicately and with great deference to the military. 2

I am not, however, a technocrat. 3 I have emphasized that while expertise is important, especially in technical fields, we do not surrender ultimate control of public policy to the experts. In a discussion about so-called “gender reassignment” framed around a case in which adoptive parents were acceding to a child’s request for the surgery, I noted that “[t]he anglo-american tradition has always deemed it appropriate for public policy to intervene in people’s lives when they propose to hurt others, and, in some cases, when they propose to hurt themselves.” The question, then, I said,

is in which cases should policy intervene? The case in which a child threatens to cause himself grave injury, and in which the parents are willing to facilitate rather than thwart that intent, is one in which society deems intervention appropriate. …

If the boy were schizophrenic and threatened to drill a hole in his head and the parents proposed to buy him the drill, he would be removed from the home. … And that would happen even if the consensus of the psychiatric community was that letting him drill a hole in his head was actually the only way that he could self-actualize and become the person he believes himself to be as he lies on the ground bleeding to death, because in the last analysis, public policy is informed by experts but is decided by the public. If the public thinks that the experts are as nuts as the boy, it can and will reject the expert opinion. The same thing goes for climate change, for example: There is an expert consensus that we’re responsible and public policy must  do something. The public disagrees. Maybe the “experts” are right (I take no position on that) but a majority of the population isn’t willing to follow where the experts want to go, and so public policy will not go where the “experts” want it to go.

So the experts don’t have the final say—even if they’re right. But they aren’t necessarily right. Expertise is useful, but communities of experts are no less prone to trends and groupthink than any other community; arguably they are more so, and certainly the consequences are more dire. Doctors can make mistakes that last a moment and yet maim or kill patients; the medical community can makes mistakes that last decades and maim or kill thousands of patients. … [It's a good idea] to study the history of the eugenics movement, which at one time or another also commanded significant support in the medical communities of some countries, including this one, to say nothing of other social elites. Indeed, one of the most lauded (even feted) justices in this country’s history, Oliver Wendell Holmes, contemptuously dismissed people like me and our silly a priori moral arguments against eugenics. A law providing that “the health of the patient and the welfare of society may be promoted in certain cases by the sterilization of mental defectives”—people with a a low IQ—was perfectly constitutional, said Holmes, in the Supreme Court’s 8-1 decision in Buck v. Bell; “Three generations of imbeciles are enough.” 4 Happily, America at large was less open-minded than Holmes.

These are not contradictory propositions but two sides of same coin. In The Day After, I explained that conservatives have an epistemological skepticism that prizes tradition, experience, and “deference—not absolute deference, to be sure—to the experience of … those who are on the front lines of a problem. 5 Deference does not mean a surrender of ultimate control, it means an acknowledgment of the proper relationship between knowledge and decision, and candor about the limits of one’s own knowledge and presupposiions. Thus, in AMA v. Obamacare, for example, I pointed out that while my language in the DADT cases was strong, the military lies at the “extreme” of the principle “that we should give a great deal of deference to the professionals in a given field—the people who are hands-on, the people on the front lines.” 6 I emphasized that “I counsel deference, in the proportion dictated by specific context, not abdication of judgment. The military is an exceptional context, given their mission and the imminent risk to their lives and limbs; it accordingly gets exceptionally high deference. The same principle applies to other situations, but the level of deference is naturally far lower.” 7 It is lower in other cases sometimes because of the depth of knowledge required (not every field is nearly as recondite as some of its experts would like to think), sometimes because of the breadth of the field(s) involved (experts are also prone to siloing, and when a proposed regulation touches their field of expertise, they may be insensitive to other fields that it touches), sometimes because of the identity of the actor to whom deference is proposed (it is, of course, a very different matter to propose deference to the military on military affairs than to propose deference to Monsanto on ariculture policy), and sometimes all of the about. Thus, the opposition of the AMA to Obamacare was not decisive for me: It was a “useful datapoint[ ],” but “we cannot simply slam the door and declare that ‘the doctors have spoken, the matter is ended.’” 8

In brief, then: Deference never becomes abdication, but it can functionally resemble delegation; it is appropriate when specialist knowledge is needed that we cannot readily obtain, and, in the political context, it especially warranted when the actors to whom it is proposed to defer have incentives and positions that make them particularly apt to make the right decision. With these things in mind, let us consider the NSA programs.

The NSA programs are and must be subject to debate, weighing of tradeoffs, and oversight. That isn’t questioned. Rather, the questions are where that debate should take place and who should judge it. For almost any other program, the answer would be “the democratic process.” The problem with subjecting the NSA programs to the traditional models by which we do those things, however, is that very little of the information that we would need in order to have that debate is or can be available to the general public. The President and certain parts of his (or her) administration are privy to information that the general public isn’t and can’t be. And we can’t have a national (or even a Congressional) debate about a largely-secret program that responds to largely-secret needs for the same reason that you can’t have a debate about the implications of the Higgs Boson for supersymmetry with a fourth grader: A policy debate presupposes knowledge of the relevant issues and, if not of the outcomes of various choices, then at least enough information to draw rational inferences about them. An opinion, a bare, conclusory assertion, made without such knowledge, is not a debate position.

A public debate on the NSA program is therefore impossible and dangerous; it would weigh two unknown quantities against one another on an invisible scale. Accordingly, because much of the information that explains why the program is necessary and what the program does is classified, the answers to the questions above are clear. The primary locus of the debate must rest within the executive branch, subject to the judgment of the President, who is charged, before God and history, with protecting this country in light of knowledge that he has but which we may not have. That may be unsettling, but it is a necessary consequence of the epistemological limits just described.

That is an extraordinary situation—it’s dangerous, and it’s constitutionally unusual if not aberrant. To be sure, the founders were not the neurotic libertarians of today (more on this anon); they understood full well that state secrets came with the executive power that was reposed in the presidency. “Decision, activity, secrecy, and dispatch” must characterize the Presidency, wrote Hamilton in Federalist 70; a legislature “is unfit to exercise the executive power,” wrote John Adams in Thoughts on Government, “for want of two essential properties, secrecy and dispatch.” Nevertheless, the incipient danger in this situation 9 demands the oversight that is possible while retaining confidentiality, which is where the intelligence committees and the FISA courts are able to come into play. But the primary check on all this remains the President himself. And the extraordinary reality thus implied should induce us to be exceedingly careful about whom we elect. 10 If this is a trust that we must repose in the Presidency, we must perforce confide it to a chosen President, and because that is an awesome and extraordinary trust, we need to ensure that we are electing serious, sober, experienced, God-fearing men and women whom we can trust. Many of us think that we picked the wrong guy, but so what?

In this case, the duly-elected President of the United States, who is sworn to faithfully execute the Office of President of the United States and to preserve, protect and defend the Constitution of the United States, and who knows an awful lot more about the security exigencies that we face than you, me, or anyone else in the general population, has determined that this program is necessary for the national security of the nation. This is an exercise at the core of a president’s legal powers and the height of a president’s prudential authority. 11 If we should defer to his judgment on anything, this is it.

For sake of being clear, I should say explicitly: I should not be understood to be on the “pro-PRISM” side of a debate between people who are “pro-PRISM” and those who are “anti-PRISM.” My claim is that the general public lacks (and cannot be given) the information necessary to have that debate. That debate—the debate that the “anti-PRISM” folks are keen to have, the weighing of PRISM’s utility against its costs—must happen, but I am not taking a side in it. Rather, I am arguing that that debate must and can only take place within the walls of the executive branch. I do not advocate PRISM. I deny that you and I are competent to have a valid opinion on it, to advocate for or against it.

Justice Stewart’s concurrence in the Pentagon Papers case remains trenchant:

“[I]t is elementary that the successful conduct of international diplomacy and the maintenance of an effective national defense require both confidentiality and secrecy. Other nations can hardly deal with this Nation in an atmosphere of mutual trust unless they can be assured that their confidences will be kept. And, within our own executive departments, the development of considered and intelligent international policies would be impossible if those charged with their formulation could not communicate with each other freely, frankly, and in confidence. In the area of basic national defense, the frequent need for absolute secrecy is, of course, self-evident.

“I think there can be but one answer to this dilemma, if dilemma it be. The responsibility must be where the power is. If the Constitution gives the Executive a large degree of unshared power in the conduct of foreign affairs and the maintenance of our national defense, then, under the Constitution, the Executive must have the largely unshared duty to determine and preserve the degree of internal security necessary to exercise that power successfully. It is an awesome responsibility, requiring judgment and wisdom of a high order.” 12

II. Conservatives, libertarians, and tradition

Reaction to the program has not broken along normal partisan lines. In part, that is because many Republicans and Democrats staked out positions on identical programs (whether real or imagined) during the Bush administration, since which time the partisan polarities have reversed. Nevertheless, it’s more than simply a partisan interest that has fractured GOP reaction: This issue breaks down a fault line within the GOP between conservatives and libertarians. It is necessary to clarify this distinction, which has become blurry even in a moment in which one might expect it to snap into sharp focus.

Conservatives and Libertarians are not cut from the same cloth even though we happen to be woven into the same coat. Modern Progressives and Libertarians are estranged siblings, but alike the children of old Liberalism. 13Conservatives are now, as we were then, philosophically opposed to Liberalism and its progeny—not just over particular policies (over which Progressives and Libertarians, having taken very different paths in life, disagree), but in terms of their mindsets, analytical frameworks and its first-order principles. 14 In America today, by historical accident, the policies and second-order principles of Conservatives and Libertarians usually coincide against the the policies and second-order principles of progressives. For this reason, we are able to share space under the GOP umbrella, and “the marriage is generally a happy one notwithstanding the spouses’ occasional propensity to hurl the china at one another.” 15

Usually—but not always. Hence the fractured reaction to the NSA programs. Conservatives assess government programs first through the lens of tradition. 16 We believe that the government should be confined to its traditional and constitutional sphere of action. Libertarians, by contrast, assess government programs by measuring them against an abstract concept: “Liberty.” No matter how plain the traditional and Constitutional authority for a program, the Libertarian is inclined to oppose it if it encroaches onto his freedom. Thus, for example, the Conservative might support a draft in some circumstances, but the Libertarian cannot. Because progressives have spent a century expanding government far beyond its traditional sphere in ways that trample on personal liberty, conservatives and libertarians alike cry foul about “big government” in 2013, but we do so for different reasons and measured against different standards. And that difference becomes stark when we assess government actions that fall within its traditional sphere. In such cases, conservatives generally believe that it can, should, and must act robustly, vigorously, and efficiently. Libertarians—a little neurotic about government, to be frank—fear governmental vigor per se. 17 Government is no less apt to encroach on “liberty” in its traditional areas of concern, they would say, than in situations where its intervention is novel, and the libertarian does not (as we do) accept the legitimacy of the government’s action in this sphere simply because it is traditional.

On foreign policy, Libertarians tend to be more isolationist than Conservatives, who in turn are less interventionist than the so-called “neoconservatives.” So far as general domestic policy today is concerned, the Conservative and the Libertarian tend to align against the Progressive. 18 The break point tends to be over law enforcement policy; libertarians love the Warren Court’s criminal procedure revolution while conservatives are skeptical at best. 19) And it isn’t hard to understand why: It is important to realize that Libertarians do not simply oppose actual interference in their lives; they are skeptical of actions that could interfere in their lives, including those which are innocuous in themselves but which are susceptible to “abuse.” For the Conservative, by contrast, the criminal is the greater menace than the Constable.

Much the same considerations are at play with the NSA programs, which are artifacts of national security policy, and, therefore, involve foreign, domestic, and law enforcement policy. The programs do not actually interfere with anyone’s activities, but they impede the amorphous “liberty interest” of being able to do whatever one likes and believing that the government doesn’t know about it. For some Libertarians, that’s enough, and for the rest, that plus the potential for abuse adds up to rejection. It’s important to understand that the Libertarian isn’t exactly in the “pro-PRISM versus anti-PRISM” debate that I mentioned earlier: That debate weighs the programs against the liberty costs, but the Libertarian cannot get into that debate. She never weighs the ends because she has an a priori commitment that excludes the means, no matter how well she might like the end.

For the Conservative, however, even one inclined to reject my counsel and enter the “pro-PRISM versus anti-PRISM” debate, matters are much more straightforward. The NSA programs are an exercise at the core of a president’s legal powers and the height of their prudential authority; national defense, in turn, is the core of the legitimate functions of the federal government. Indeed, in an even more fundamental sense, it is the very thalweg of traditional governmental functions. 20 Conservatives therefore believe that government should act vigorously to discharge that responsibility, and that it should avail itself of every legal tool to hand.

“Legal” includes “constitutional”—”legal” means, so to speak, the sum total of the law, the result once all the relevant hierarchical authorities are stacked and their operations on one another are totalled. I will therefore conclude with a note about the Fourth Amendment issues that have been raised.

III. The NSA programs and the Fourth Amendment

To the best understanding that we can reliably gather, the two NSA programs gather only metadata—they are not akin to wiretaps but pen registers.  The programs are predicated on the creation and retention of metadata by telephone and internet service providers such as Verizon and Google in the ordinary course of their business activities. The government then subpoenas the metadata and stores it; the conditions under which the government later accesses that data are disputed, but that dispute need not detain us, for the Fourth Amendment regulates how government may obtain data, not what it can do with data once it has been obtained. 21

The programs therefore do not involve the government obtaining “your data,but rather business records—data about you—that is created and retained by third parties from whom you buy services. This distinction is critical because, by breaking the Fourth Amendment chain between the person whose activities are described in the metadata and the government, it obviates any Fourth Amendment claim. A few years ago, Volokh Conspirator Nick Rosenkrantz suggested a helpful framework for assessing claims that constitutional rights have been violated that I would sum up as the “grammar” of a rights violation: “What right (precisely), of whom, has been violated by who?” It’s a deceptively-simple question, but the NSA program shows its bite. In the present case, the right against unreasonable searches or seizures of the whom’s person, house, papers, and effects was allegedly violated. But who violated that right? Did Verizon violate it? Surely not. They collected the data, but Verizon is a private actor; it can collect whatever data it likes, subject to statute law. Did the government violate it? How? They didn’t search or seize the who‘s person, house, papers, and effects. They may have searched and/or seized Verizon’s papers and effects, but that’s a whole different whom. The gravamen of the Fourth Amendment protests is not that Verizon‘s Fourth Amendment rights were trespassed!

Three analogies might help illustrate why the Fourth Amendment claim can’t work. Suppose that you routinely use the services of a particular caterer for your parties. The caterer keeps records of each event it supplies, including what foods and drinks, etc. The FBI is suspicious that your parties involve something untoward, and so they obtain the caterer’s records to build a case against you. No FBI agent has yet come within a hundred miles of your person, house, papers, or effects, and yet, for you to say that the NSA program violates the fourth amendment, you must be ready to assert that the FBI’s seizure of the caterer’s records are a violation of your Fourth Amendment rights. 22 Or suppose that you use FedEx for sending business mail, and let’s assume that FedEx logs each package that you send in its customer records. The Feds suspect that you’re up to no good. Now, if they intercept and open a package, without a warrant, your fourth amendment rights come into play. If, however, they obtain FedEx’s customer records, it’s hard to see how that violates your fourth amendment rights. They aren’t opening your mail, they’re obtaining data that describes your mail from a third party. That’s a precise analog of the PRISM program, so far as we currently understand it.

One more analogy. You are running an illegal scheme, and the Feds obtain your bank’s business records, which provide sufficient detail for the proecution to use the records at trial to prove your purchases of materials for the scheme. Can you move to suppress the records as having been obtained in violation of your Fourth Amendment rights? This last one is particularly important, because it isn’t a hypothetical: That was precisely the question faced by the Supreme Court in United States v. Miller, 23 and the answer was no, because you have no fourth amendment rights over third party data about you, which is precisely the issue here. 24 And the answer was again no in another case that is indistinguishable from this one, Smith v. Maryland. 25 Smith squarely holds that the customer has no legitimate expectation of privacy in the numbers dialed from his phone. Telephone users “typically know that they must convey numerical information to the phone company; that the phone company has facilities for recording this information; and that the phone company does in fact record this information for a variety of legitimate business purposes.” 26 That the calls originated in a person’s home is “immaterial”: “When he used his phone, petitioner voluntarily conveyed numerical information to the telephone company and “exposed” that information to its equipment in the ordinary course of business. In so doing, petitioner assumed the risk that the company would reveal to police the numbers he dialed.” 27 This may be fresh panic, but it is settled law.

The coals under the kettle here, I think, are a number of developments in technology, society, and the
private sector that have enabled the government to do certain things without needing to use the tools regulated by the fourth amendment that it would preciously have been able to do only by using those tools. (Or at least, that it could not have easily done without those tools.) Very soon—if it hasn’t happened yet, and I would be surprised if it hasn’t—a state is going to convict someone for a crime based on evidence that the defendant publicly posted on their Facebook wall. No warrants needed. Or consider the ongoing question of whether and when the government may attach a GPS tracer to a person’s car. 28 That debate is moot in a world where, thanks to big data projects such as Google’s “Traffic,” the government doesn’t have to follow you or place a GPS tracker on your car. You have placed your own GPS tracker on your person (you call it a “phone”), and you have voluntarily supplied a constant and detailed account of your whereabouts to your service provider, information in which you have zero privacy interest, and which the government may acquire in a variety of ways.

So what happens? I have to suggest that the answer is “not much.” As I’ve said many times over the years, the Constitution isn’t airtight. 29 Orin Kerr’s equilibrium-adjustment theory is persuasive as an account of how the court thinks about growth in technology, 30 but the changes that I’m talking about aren’t advances in technology that make searches and seizures easier, as in cases like Kyllo or Jones. 31 Rather, these are changes that obviate the need to perform searches and seizures. (“Colonel Mustard just checked in at THE LIBRARY on foursquare,” and look, here’s a timestamped selfie that he tweeted in which he’s holding a candlestick. Fancy that!) And it’s anxiety about that fact that’s driving people to try to shoehorn the Fourth Amendment back into play.

When the Fourth Amendment was written, it’s only a slight exaggeration to say that the only way in which the government could learn a whole bunch of information about a person was by surveillance of the person, their home, and so forth. Unsurprisingly, then, the Fourth Amendment therefore limits the government’s surveillance of the person, their home, and so forth. Nowadays, however, people willingly turf over virtually every intimate detail of their lives to third parties, and in many cases, the government could simply buy all the information it needs on the open market. Or it could require by law that any business engaged in interstate telecommunications provide a copy of its transaction logs to the government. Indeed, a diligent prosecutor’s first step, one might think, is to Google the defendant. So, to repeat, modern technology has created the very real possibility that the government can achieve results that it could previously have achieved only by engaging in conduct that the Fourth Amendment forbade. This poses a dilemma, but I think that those who hope or expect to see the courts find a Fourth Amendment solution to it will be disappointed.

Notes:

  1. Simon Dodd, Don’t Ask, Don’t Tell, Again, Stubborn Facts, Feb. 1, 2010, http://stubbornfacts.us/law/dont_ask_dont_tell_again (quotation marks deleted and some alterations in original).
  2. U.S. Const., art. 1, § 8.
  3. CfGregory McAvoy, Controlling Technocracy 89-90 (1999) (technocrats “are skeptical of citizen’s ability to effectively participate in politics [and] maintain an optimistic view of policy experts’ moral and instrumental knowledge”; they believe that citizens are “overly emotional and self-serving, and therefore unable to participate in politics in a way that will allow society to achieve its ‘best interest,’” whereas the experts “can stand above partisan politics and make informed judgments about how public policy should be conducted”).
  4. Buck v. Bell, 274 U.S. 200, 207 (1927).
  5. 2 MPA __, __ (2012) (emphasis added).
  6. Simon Dodd, AMA v. Obamacare, Stubborn Facts, June 11, 2009, http://www.stubbornfacts.us/domestic_policy/ama_v_obamacare.
  7. Ibid.
  8. Ibid.
  9. See Conor Friedersdorf, All the Infrastructure a Tyrant Would Need, The Atlantic, June 7, 2013, http://www.theatlantic.com/politics/archive/2013/06/all-the-infrastructure-a-tyrant-would-need-courtesy-of-bush-and-obama/276635/
  10. Cf. Federalist 68.
  11. And, stipulating that the programs are authorized by the Patriot and FISA Amendments Acts, as the administration contends, the height of his legal authority. Cf. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-38 (1952) (Jackson, J., concurring).
  12. New York Times v. United States, 403 U.S. 713, 728-29 (1971) (Stewart, J., concurring)
  13. See Liberalism, Stanford Encyclopedia of Philosophy, http://plato.stanford.edu/entries/liberalism.
  14. See generally The day after, supra note __; Louis Wasserman, Handbook of Political “isms” 25-29 (1941). Eventually, a book-length treatment of social justice from the standpoint of conservative Catholics will rehearse this material in greater depth.
  15. The conservative premise, 2 MPA __, __.
  16. See Traditional government functions, 2 MPA __.
  17. At a conference several years ago, Judge Easterbrook attributed to Robert Heinlein the remark that governmental efficiency is the enemy of freedom, and there’s something to that idea.
  18. But see, e.g., In re Firearms debate, 3 MPA __ (2013). The Constitution is not a recipe, but a guideline; it marks out the general points of what the federal government can do, what the states may not do, how the federal government must act, and how it and the states may not act. There are any number of imaginable configurations of government that fit into this framework. Conservatives say that the government that should do those things that have been proper to the government in the Anglo-American tradition. Libertarians say that we can hang anything we like on the framework, and, that being so, the government that we hang on it should be small enough to maximize personal liberty, that it should be small enough that it won’t intrude directly and cheap enough that it won’t intrude indirectly by sucking too much money from our wallets. Thus, we both reject a general government-run healthcare system, for example, because that is alien to the traditional functions of government and intrudes on individual liberty. Of course, some judgement is involved, and it is very common that you encounter a conservative with libertarian leanings and vice versa. You don’t encounter too many pure Burkeians in America, not least because American conservatives have to find some way to live with a tradition that is profoundly Liberal in many regards.
  19. It was an amazing indication of how far libertarian ideas have come to be mislabelled as conservative ideas that the Indiana Supreme Court’s decision in Barnes v. Indiana, 946 N.E.2d 572 (Ind., 2011), was savaged by Republicans who would have thought themselves conservatives. See Simon Dodd, Regarding Barnes v. Indiana, May 25, 2011, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1852363.
  20. Cf. Calvin’s Case, 77 ER 377 (1608). The Declaration of Independence insists that governments are instituted to secure the people’s God-given rights, and this is too often misunderstood, especially by Libertarians, who sometimes appear to believe it to say that governments are instituted to secure rights against governments. The first and primeval enemy against which governments are instituted to protect the rights of the individual and the community of individuals is the foreign power.
  21. If it were otherwise, a slew of cases from United States v. Leon, 468 U.S. 897 (1984), on through Herring v. United States, 555 U.S. 135 (2009), were wrongly-decided. The reason that the court is able to rule “no harm no foul” in such cases is that that the exclusionary rule is not the substance of the Fourth Amendment but rather a doctrinal fence created by judges to guard against violations of that substance that would otherwise be difficult to police, and what courts have created, courts can relax. Cf. Judicial conservatism and the Obamacare cases, 2 MPA __, __ (2012) (endorsing such “doctrinal fences”).
  22. I recognize that physical searches do not exhaust the constellation of Fourth Amendment searches, see, e.g., Florida v. Jardines, 569 U.S. __ (2013); Kyllo v. United States, 533 U.S. 27 (2001); Susan Brenner, Fourth Amendment Future: Remote Computer Searches and the Use of Virtual Force, 81 Miss. L. J. 1229 (2012), but the facts tendered are very remote from questions about imaging technology or network intrusion.
  23. 425 U.S. 435 (1976).
  24. Cf. United States v. Cormier, 220 F.3d 1103 (9th Cir. 2000); United States v. Thomas, 878 F.2d 383 (6th Cir., 1989).
  25. 442 U.S. 735 (1979).
  26. Smith, 442 U.S., at 743.
  27. Id. at 745.
  28. Compare United States v. Garcia, 474 F.3d 994 (7th Cir. 2007), with United States v. Jones, 565 US ___, 132 S.Ct. 945 (2012).
  29. E.g. in 2012, http://simondodd.org/blog/?p=565; in 2011, http://stubbornfacts.us/foreign_policy/defense_president_obamas_eventual_military_action_libya; in 2009, http://althouse.blogspot.com/2009/01/so-maybe-chief-justice-roberts-was.html?showComment=1232646060000#c2123132809027525495).
  30. See Orin Kerr, An Equilibrium-adjustment theory of the Fourth Amendment, 125 Harv. L. Rev. 476 (2011).
  31. Kyllo, supra note __; Jones, supra note __.