Reflections on Jesus’ mission

We are asked how we would describe Jesus’ mission and message, and whether it has changed since His time.

Since Eusebius of Caesaria’s fourth-century Historia Ecclesiae, it has been commonplace to conceive of Jesus as fulfilling three roles or missions, those of high priest, prophet, and king. No less often, we see an approach focused on those activities which seem to occupy the most time in His Earthly ministry: Healing and teaching. But I have long been persuaded by the Scottish presbyterian Horatius Bonar that this risks seeing Jesus as little more than a special man who performed essentially the same functions as had previous prophets, teachers, and healers, rather than focusing on what is unique to the God-man. Bonar put it this way:

If Christ is not the substitute, he is nothing to the sinner. If he did not die as the sin-bearer, he has died in vain. Let us not be deceived on this point nor misled by those who, when they announce Christ as the deliverer, think they have preached the gospel. If I throw a rope to a drowning man, I am a deliverer. But is Christ no more than that? If I cast myself into the sea and risk myself to save another, I am a deliverer. But is Christ no more? Did He risk His life? The very essence of Christ’s deliverance is the substitution of himself for us—his life for ours! He did not come to risk his life; he came to die! He did not redeem us by a little loss, a little sacrifice, a little labor, a little suffering: ‘He redeemed us to God by His blood’ (I Pet 1:18,19). He gave all he had, even his life, for us. This is the kind of deliverance that awakens the happy song, ‘To Him that loved us, and washed us from our sins in His own blood’ (Revelation 1:5).

“He came to die.” What a line! It grabs you by the lapels and commands that you flee from its repulsive affect or to bow to its inescapable truth. Jesus may be a great teacher, and a healer par excellence, but He is Christ first and foremost. Of course, this isn’t to take away from the importance of His teaching or healing. But it is to underscore that we must understand Him primarily in terms of that which is exclusive to Him: There had been prophets who taught before Jesus, so the Messiah could not be merely a prophet; and there had been healers before Jesus, so the Messiah could not be merely a healer; and Jesus left a Church to continue those ministries of teaching and healing. What is unique to Jesus Himself, and what must therefore be understood to lie at the core of his mission, is Calvary: By His sacrifice of atonement, by His passion, by His cross and resurrection, He has set us free, as Isaiah prophesied He would.

In our assigned reading [Editor's note: N.T. Wright, The Mission and Message of Jesus in The Meaning of Jesus: Two Visions (1999)], Wright underscores that while the Jews of Jesus’ day expected a Messiah, they had in mind a very different kind of Messiah. Mired in Earthly oppression, they were expecting an Earthly liberation. They expected to be set free from the yoke of Rome and its Herodian surrogates; they seemed not to see past the figurative fall of Israel’s babylonian exile to the very real fall of Man in Adam, and they lost sight of God’s real interest, which is not in national borders and whose blood soaks which sand, but rather in the hearts of His most precious creation, Mankind, forged in His own image and likeness, and the relationship that we ruptured in Eden. In the final analysis, humanity is broken at its root—this is the “T” in the popular Calvinist “TULIP” mnemonic, “total depravity,” or “original sin” in the vernaculars of most other Christian traditions—and before any good works in our lives can avail us anything, before any amount of orthopraxy will do us any good, we have to fix our relationship with God. And there’s nothing that we could have done about that before Jesus fulfilled the law on Calvary’s altar. That’s not to say that we don’t need the teaching of Jesus; we can lose our salvation by our conduct, and while it’s arguable that the law and prophets provide a sure guide to avoiding what the Catholic tradition calls “personal” sin (in contradistinction to the afore-mentioned “original” sin), the experience of Israel and the need for Jesus to explain how far afield it had strayed suggests that we must pay attention to his teaching, too. What is essential, however, is the need for Christ’s atoning sacrifice and our need to avail ourselves of it.            

How then should we describe Jesus’ mission? Wright says that “Jesus invited His hearers to repent and believe the gospel.” Yes, but let’s be precise: What was that Gospel, that good news? That through His blood, Jesus would make it possible for us to be reconciled to God, and through our repentance, we can inherit salvation. And that mission is as vital and urgent today as it was then.

[Editor's note: In other words, I am proposing that Jesus' mission is inseparable from the question of who He is, treated here.]

Justification

The design of this blog is quite deliberate. Typography is something that interests me, and I did have in mind, when selecting and customizing the theme, that it should be simple, uncluttered, and readable. For example, it isn’t accidental that the footnotes are a contrasting, sans-serif font. The line-length on this blog should vary from about sixty to seventy characters, which should approach optimal readability. It should be a very crisp black-on-white. Nevertheless, I have come to the conclusion that that justified type is marginally less easy to follow than left-aligned text, so I have changed the stylesheet accordingly.

Space is big, redux

If you’ll recall my 2012 post Space is big, in which I pointed out that the speed of light is actually quite slow and that galactic exploration requires speeds orders of magnitude faster than those claimed in shows like Star Trek,
this video may help visualize the fact. It gives a photon’s-eye-view of a ride out from the Sun at (naturally) the speed of light.

What does the Church REALLY teach about vaccines?

An outbreak of the measles virus has focused attention on a small but growing number of American parents who refuse to have their children vaccinated, citing a variety of medical and ethical concerns. This post is agnostic on the merits of that question. 1 I want to focus on a different and precise point: Whether Church teaching requires Catholics to take a particular position on that question. In an article for the Catholic News Agency, Mary Rezac tells us that the answer is yes:

[T]he National Catholic Bioethics Center (NCBC), a non-profit research and educational institute committed to applying the moral teachings of the Catholic Church to ethical issues arising in health care and the life sciences … , along with the Pontifical Academy for Life ["PAL"]—a Vatican body established to provide information about issues in law and biomedicine—have studied the moral issues surrounding vaccines and have determined that it is morally licit, and even morally responsible, for Catholics to use even those vaccines developed from aborted fetus cells … [PAL] determined that the good of public health outweighs the distanced cooperation in the evil of the abortions performed in the 1960s from which the cell lines were developed. No new abortions have been performed to maintain these vaccines, and no cells from the victims of the abortions are contained in the vaccines.

Currently the vaccine lines for rubella, chicken pox, and hepatitis A are the remaining vaccines that have been developed from aborted fetal cells and for which there is no alternative available.

“One is morally free to use the vaccine regardless of its historical association with abortion,” reads a document from the NCBC based on the findings from [PAL, although the] … document goes on to say that Catholics should express their opposition to vaccines developed from aborted cells, and that there is an obligation to use alternative vaccines, should they exist. 2

If the Church has answered the vaccination question, as Rezac’s headline implies, then Catholics must (we will stipulate) give way. 3 The problem here is that neither the NCBC nor the PAL has the authority to answer the question for the Church, and Rezac identifies no answer from any person or body which does have that authority. 

The magisterium sets out to answer many questions of faith and morals. Inevitably, however, there are gaps. Aside from the obvious case in which the Church simply has no teaching at all, there many concrete questions on which somewhat-applicable magisterial teaching is underdeterminate. Briefly-stated, law is underdeterminate in relation to a concrete case when the sum total of legal rules applicable to that case confine the constellation of possible results but allow for more than one result, requiring the decisionmaker to supply a rule of decision from some other source. 4 “2+2″ is determinate; “2 + x where x is undefined” is indeterminate; “2 + where x ≤ 3″ is underdeterminate. Similarly, the magisterium, or any particular magisterial teaching, may be underdeterminate as applied to a concrete question because, for example, the magisterium may never have pronounced on the precise question at issue, or it may not have promulgated teaching of binding force on the topic, or binding teaching in the general area of the question may be too abstract to provide a rule of decision or so remote that the analogy required to apply it vitiates its binding character. 

When the Church has not spoken on a particular point, or if its teaching is underdeterminate, the question is necessarily remanded to the conscience of each believer to form their own judgment. When we confront an ethical problem, then, the first question is not “what is the right answer.” I have an opinion on vaccines; the anti-vaxxers have opinions on vaccines; I’m sure that the pope has an opinion on vaccines; and those opinions may be decisive as to our judgment if the Church has not spoken on the point. That is the first question: Whether the magisterium has preempted our judgment by promulgating binding teaching on the question. “Does the Church bind the faithful to a particular answer on this question?” And if not, does the Church bind the faithful to a particular inquiry, as she arguably does in, for example, the death penalty, where she does not bind the faithful to a simple yes or no, but instead prescribes the standard by which we must asses individual cases? 5

Nevertheless, although the Church can preempt the faithful and bind them to a particular answer, only the Church can do so. If Father Jazzhands of Rapid City, MI writes an op/ed in which he tells you his opinion on the question, that isn’t the decision of “the Church,” binding on all the faithful. It doesn’t become such even if Father Jazzhands styles it as a decision and claims the authority to do so. Why not? Because the Church has never authorized Father Jazzhands to make that determination. She might: She may, as a general matter, choose the agencies and instrumentalities through which she speaks. But whether or not she has done so is a question one must always ask when facing what purports to be a decision: Even if the promulgating body intends it to be a decision, does that body have the authority to issue that decision?

Neither the Catechism of the Catholic Church nor even the Compendium of Social Doctrine say a word about vaccines. I am unaware of any magisterial authority that addresses the question. And I should perhaps remark that because vaccines are inescapably a novel question, having come into existence only in recent centuries, we should perhaps be cautious about too-readily accepting claims that the Church has provided a binding answer on the subject. 6 

At any rate, the only authority cited by Rezac is PAL. And let’s assume that PAL intended to provide a definitive, binding answer on the vaccine question. PAL does not itself belong to the divine constitution of the Church, and so, if it has authority to answer that question, it must have been given that authority. So which pope gave it that authority? By which instrument? PAL was established by the motu proprio Vitae mysterium, 7 and nothing in that motu proprio confers on it the authority to wield binding, magisterial power. So on its face, Vitae mysterium doesn’t give PAL authority to answer the question. It may fairly be objected, however, that the effect of legislative lacunae depends on the backdrop against which the legislation is enacted. 8 There is no need to specify an attribute that the thing created possesses by its very nature; a curial Congregation, for example, is understood to exercise vicarious authority over the subject matter confided to its jurisdiction, and so we do not find a detailed elaboration of the nature and functions of a congregation in the apostolic constitution Pastor bonus, 9 just assignments of jurisdiction. If in 1994 a Pontifical Academy was ordinarily understood to wield magisterial authority, then PAL would posses that authority unless Vitae mysterium specifically withheld it. Were they? I don’t know. 10 But I would suggest that it is the burden of those who would insist that the teaching is binding to show the basis on which they would preempt the decisions of more than a billion Catholics. 

I understand the desire to invest PAL’s conclusion with an unearned authority. Anti-vaccination sentiment seems to be getting out of control with worrying consequences, and any stick to beat a dog, right? If the Church has preempted the question, that’s a good stick. But overreading PAL’s authority for convenience isn’t a sound position to take, first and most importantly because it’s unprincipled, second because, if taken seriously, it would bind us to every stupid utterance that comes out of any pontifical institution, and third, and perhaps most troubling, it asserts an unjustified power over the consciences of the entire body of the faithful. The question that you have to ask is, by what authority or right may the independence of each believer’s conscience be preempted? A few days ago, I remarked in another context that if your best answer to the question “how do we know X” begins with “Our lady of Y said,” your real answer is “we don’t know X.” In the same way, if the answer to that question begins with the words “[t]he Pontifical Academy of Y” or “the pontifical council for Z,” then it seems to me that the real answer is “we don’t know X.” And both for the same reason: Neither has the power to bind the assent of the faithful. 11 I disagree with the anti-vaxxers on the merits. But by what right or authority would I bind them to a different answer? Symmetrically, by what right or authority would they bind me to their answer? I cannot insist that they are at odds with the Church unless I can show clearly that there is actually a binding teaching with which they are at odds.

Put another way: Rezac’s expert, Dr. Cieslak, can say (and I would say) that “[a]s a Catholic I would argue that it’s a socially conscious thing to do,” so you ought to do it. But if he, or I, or Rezac, or anyone else wants to say that “as a Catholic you have to do it, you foolish anti-vaxxer,” that “you’re not just wrong about this, you’re actually defying the teaching of the Church,” then we had better be able to show the existence, content, and, ideally, the source of that teaching. If you don’t have an authority, all you have is an opinion! And I have no right to demand that someone else change their opinion to match mine, any more than they have a right to demand that I change mine to match theirs.

So what does the Church really teach about vaccines? I think that the safest answer is that the Church teaches nothing at all about vaccines,  as yet, and the question is thus left to the conscience of individual Catholics. 

Notes:

  1. For the record, however, I am not myself agnostic on that question. The “Anti-Vax movement is kooky, and I urge parents to have both children and pets vaccinated. See also Kendall Breitman & Manu Raju, Where 2016 GOPers stand on vaccinations, Politico, Feb. 3, 2015, http://www.politico.com/story/2015/02/ted-cruz-vaccinations-114862.html (last visited Feb. 3, 2015).
  2. Rezac, Measles are making a comeback, so what does the Church teach about vaccines?, CNA, Jan. 29, 2015, http://www.catholicnewsagency.com/news/measles-are-making-a-comeback-so-what-does-the-church-teach-about-vaccines-38175/ (last visited Feb. 3, 2015).
  3. See CCC 2039.
  4. See, e.g., Lawrence Solum, Originalism and Constitutional Construction, 82 Fordham L. Rev. 453 (2013); Randy Barnett, The Original Meaning of the Commerce Clause, 68 U. Chi. L. Rev. 101, 108-110 (2001); Solum, On the Indeterminacy Crisis, 54 U. Chi. L. Rev. 462, 473 (1987).
  5. See Encyc. Evangelium vitae, no. 56, 87 AAS 401, __ (John Paul II, 1995). The binding authority of this teaching is not clear, cf. Antonin Scalia, God’s Justice and Ours, First Things, May 1, 2002, http://www.firstthings.com/article/2002/05/gods-justice-and-ours, but I assume without deciding that it is  binding.
  6. The magisterium is not a batphone; the pope doesn’t call Commissioner God-don for advice. The First Vatican Council helpfully teaches that “the Holy Spirit was promised to the successors of Peter not so that they might, by his revelation, make known some new doctrine, but that, by his assistance, they might religiously guard and faithfully expound the revelation or deposit of faith transmitted by the apostles.” Dog. Con. Pastor aeternus, 6 Acta Sanctae Sedis 40, 46  (1st Vat. Co., 1870). Old doctrine unquestionably applies to new phenomena, but its application to such is likely to be more intricate or analogical than its application to old, familiar phenomena, especially those that existed when the teaching was first given. A degree of caution is therefore warranted, and, I might suggest, ought to be assumed: We should not hastily presume that the Holy See has tromped in where angels have yet to tiptoe.
  7. 86 AAS 385 (JP2, 1994).
  8. See, e.g., Abuelhawa v. United States, 556 U.S. 816, 823 n.3  (2009); Meyer v. Holley, 537 US 280, 285 (2003); United States v. Bailey, 444 U.S. 394, 415 n.11 (1980).
  9. 80 AAS 841 (JP2, 1988).
  10. It seems doubtful. A pontifical academy would seem to reside in the general category of pontifical institutions such as Pontifical Councils and Pontifical Commissions which typically exercise advisory or research functions, and occasionally (as in the Pontifical Commission Ecclesia Dei, for example) delegated authority. Consider that the Pontifical Academy of Sciences is presently headed by Werner Arber, nominally (at most) a protestant. See Wikipedia, https://en.wikipedia.org/wiki/Pontifical_Academy_of_Sciences#President; Wikipedia, https://en.wikipedia.org/wiki/Werner_Arber. Does Dr. Arber ex officio speak for the magisterium? Consider that prior to Humanae vitae, 60 AAS 481 (Paul VI, 1968), there was the June 1966 “final report” the Pontifical Commission on Birth Control, which concluded that contraception was okay. See, e.g., Richard Fehring, An Analysis of the Majority Report “Responsible Parenthood” and its Recommendations on Abortion, Sterilization, and Contraception, http://uffl.org/vol13/fehring03.pdf. Between that report in June 1966 and Humanae vitae‘s promulgation in July 1968, was the teaching of “the Church” that contraception was okay? If you’re going to suggest that the decision of a pontifical institution has the authority to settle the vaccination question, you really can’t avoid getting into the long grass of “why.”
  11. See, e.g., Colin Donovan, Apparitions/Private Revelations, EWTN, 2001, https://www.ewtn.com/expert/answers/apparitions.htm.

Reflections on miracles

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

“To [the apostles] He showed himself alive after His passion by many infallible proofs.”
–Acts 1:3.

We consider the significance of Jesus’ miracles.

The words “miracle” and its cognate “miraculous” pose certain challenges; their familiarity and overuse tend to frustrate precision. The broader notion of a “miracle” runs from “[a]n event, whether natural or supernatural in which one sees an act or revelation of God” 1 all the way out to the truly vague, something like “an unexpected event that excites a sense of wonder, especially when its causes are not immediately clear.” This is the sense to which the word “miraculous” answers in common use: When we say that “the pilot made a miraculous landing,” we do not mean to suggest that God was his copilot, but merely that that experience would have anticipated a crash in those circumstances.

The narrower (and I think better) notion of a miracle is a supernatural intervention by God that interferes in the normal operation of the laws of nature. It “cannot be produced by any natural agency but only by the power of God. It is above the natural law, as when one dead is restored to life; contrary to this law, as when Moses caused water to gush from the rock; [and] independent of the law, as when something that might be done by natural causes … is effected without” its ordinary means. 2 It is in the narrower sense that we understand the purpose of the miracles worked by Christ and, by His authority, His apostles. Miracles, the truth of which can be seen immediately, authenticate supernatural revelation, the truth of which may not be seen or grasped immediately. 3

Christianity is irreducibly a supernatural religion. 4 Although we would certainly infer the existence of a god from the evidence available to our senses alone, that is, from natural revelation, a further and supernatural revelation was necessary for us to learn the truths and plans that God wished to communicate to us, which came through the mouths of prophets, inspired writers, and, eventually Christ Himself. 5 Jesus of Nazareth claimed to be the Christ, the promised Messiah of Israel, the very son of the living God. That was a serious claim. But Jesus worked many miracles—miracles in the narrow sense described above, and “[m]iracles impress people” because they “can only be worked by God, since they imply a supernatural intervention in the course of nature.” 6 Whatever He did that might cause his contemporary critics to doubt—that man eats with sinners and tax collectors! He ignores the ritual law! He’s super-judgmental about divorce! 7—He surely fulfilled any demand that He give them some kind of sign to authenticate His testimony. 8 What was the skeptical pharisee supposed to do, faced with His lengthy catalog of miracles? 9

Miracles demand faith. When we confront an event that stands in violation of the laws of nature, we must either deny it, or accept the supernatural and all that it implies. Thus, says the Baltimore Catechism, by His miracles, Jesus “proved that whatever He said was true, and that when He declared Himself to be the Son of God He really was what He claimed to be.” 10 His miracles force us to make our choice, to confront in the starkest terms that all-important question that He asks each of us: “Who do you say I am?” 11 Well: Could a lunatic have restored the sight of the man at Bethsaida? Could a liar have raised Lazarus—and, indeed, Himself? 12 By His miracles, i.e. supernatural acts, Jesus, and later the apostles, authenticated the supernatural revelation of the New Covenant. 13

The alternative is to simply deny the miraculous. “As a firm and unalterable experience has established these laws [of nature], the proof against a miracle, from the very nature of the fact, is as entire as any argument from experience can be.” 14 If one reaches such a conclusion, it might be better to abandon faith entirely than soldier on in search of an ersatz Christianity sine supernaturali, 15 because if one rejects the miraculous, questions naturally arise: If the miracles were fake, by what other means can one authenticate Jesus’ testimony? And: If the miracles were fake, does that not make our Savior a charlatan? 16) And: If God cannot intervene supernaturally, to what kind of debased, devalued “god” have we reduced him? So, as it turns out, denying the miraculous also forces us to make our choice: Do we, or do we not, believe in an almighty God, by the sweat of whose brow the very foundations of the Earth were forged? If so: “Granted the existence of Almighty God, since He could create the universe and establish its laws, there is no reason why He cannot alter its course and interfere with its laws” at his pleasure. 17 And granted that power, does it not stand to reason that He should do so when such testimony might seem useful to convince? 18

What I have said—that miracles are primarily means by which revelation was authenticated—accords with our modern experience in which genuine miracles are frequently-claimed and yet rarely-seen. The “miracle” of a football that seems to change its PSI from play to play in the favor of one’s preferred team does not require supernatural intervention, and concision of reasoning might attribute a more straightforward and prosaic cause. And there is something rather dangerous, it seems to me, in relying on such experiences; I am skeptical of the “charismatic” movement, which, it seems to me, places people at risk of disillusionment and loss of faith by placing excessive emphasis upon expectations of “miracles” that may either not happen or may prove to be false. This should not be taken to deny the possibility of miracles in everyday life, or to discourage praying for miracles. Miracles do happen. But placing excessive emphasis or expectation on routine miraculous intervention in modern life would seem to risk a fragile faith that constantly puts God to the test, 19 and which is lives under a sword of Damocles lest the seemingly-miraculous prove more to have a more prosaic explanation.

Notes:

  1. 3 The Interpreter’s Dictionary of the Bible 392 (Buttrick, ed. 1962).
  2. The New Catholic Dictionary 633 (Pallen & Wynne, eds. 1929); accord Charles Journet, The Meaning of Grace, ch. 4 (1957), available at http://www.ewtn.com/library/DOCTRINE/MNGGRACE.HTM (all web resources herein cited as last visited Jan . 23, 2015).
  3. See, e.g., Catechetical Instructions of St. Thomas Aquinas 6 (Collins, trns. 1939); St. Augustine, Civ. D. lib. 22 c.5; Encyc. Satis cognitum, no. 8, 28 Acta Sanctae Sedis 708, 717-17 (Leo XIII, 1896); J.P. Boyce, Abstract of Systematic Theology ch. 3 (1887) (“But as God usually acts through means, so he has revealed himself to a few, and through them to mankind in general. The only question then is, how can he give evidence to the race at large that the men he has inspired are indeed his messengers? This also might be done in various ways, but he has chosen to do it by attesting their mission by miracles wrought through them”), available at http://founders.org/library/boyce1/ch3; Edgar Young Mullins, Freedom and Authority in Religion 18 (1913)
  4. See, e.g., James Orr, The Christian View of God and the World  (9th ed. 1908).
  5. See Charles Coppens, A Systematic Study of the Catholic Religion 2-3 (1907). The First Vatican Council teaches “that God, the source and end of all things, can be known with certainty from the consideration of created things, by the natural power of human reason: ever since the creation of the world, his invisible nature has been clearly perceived in the things that have been made.” But God has nevertheless “reveal[ed] Himself and the eternal laws of his will to the human race by another, and that a supernatural, way. This is how the Apostle puts it : In many and various ways God spoke of old to our fathers by the prophets; but in these last days he has spoken to us by a Son. It is indeed thanks to this divine revelation, that those matters concerning God which are not of themselves beyond the scope of human reason, can, even in the present state of the human race, be known by everyone without difficulty, with firm certitude and with no intermingling of error.” Dei Filius (Dogmatic constitution on the Catholic faith), ch. 2 (1st Vat. Co., 1870), available at http://www.ewtn.com/library/councils/v1.htm.
  6. Matthias Premm, Dogmatic Theology for the Laity 139 (Heimann, trns. 1977).
  7. Mt 9:11; Lk 11:38; Mt 19:8.
  8. See, e.g., Jn 3:2; but see Mk 8:11.
  9. See, e.g., John Hardon, Modern Catholic Dictionary 352-353 (1966) (cataloguing and classifying Jesus’ miracles).
  10. Balt. Cat. q.325.
  11. Mt 16:15.
  12. See C.S.Lewis, Mere Christianity 54-56 (1952).
  13. See, e.g., Jason Jackson, Miracles in the Book of Acts, Christian Courier, https://www.christiancourier.com/articles/1197-miracles-in-the-book-of-acts. In his masterwork L’Eglise du Verbe Incarné, Charles Card. Journet develops a persuasive account that distinguishes the extraordinary and truly apostolic charisms, such as the working of miracles, which did not transfer to the successors of the apostles, from the ordinary episcopal charisms, at first submerged in the former, which did. See 1 Charles Journet, The Church of the Word Incarnate 127-148(Downes, trns. 1955).
  14. 3 Interpreter’s Bible, supra note 1, at 395.
  15. Cf. Heinrich Fries, Fundamental Theology § 36 (Daly, trns. 1996); Richard McBrien, Catholicism 339 ff. (3d ed. 1994).
  16. The aphorism attributed to Arthur C. Clarke is that any advanced technology may appear as magic—or miracle—to those unfamiliar with it; strip Jesus of the capacity to work miracles and yet leave him the miraculous claims and you transform him from messiah into the proverbial Connecticut Yankee in King Arthur’s Court.
  17. New Catholic Dictionary, supra note 2, at 633.
  18. The alternative, it seems to me, amounts to simple capitulation to “that doctrine of rationalism or naturalism—utterly opposed to the Christian religion, since this is of supernatural origin … [which] has plunged the minds of many into the abyss of pantheism, materialism and atheism.” Dei filius, supra note 5, c.7.
  19. Cf. Mk 4:12.

For the record: Netanyahu’s visit

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

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

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

Notes:

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

Francis v. the Zeitgeist

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

I.

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

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

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

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

And from the left, Katherine Cross:

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

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

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

II.

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

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

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

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

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

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

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

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

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

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

* * *

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

Notes:

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

Tweaking the governmental process: Some modest suggestions

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

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

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

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

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

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

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

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

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

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

Notes:

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

Reflections on the Eucharistic dialogue of John 6

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

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

I.

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

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

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

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

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

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

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

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

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

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

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

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

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

II.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

* * *

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

 

Notes:

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

Cardinalatial appointments

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

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

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

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

Notes:

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