Goodbye 2011, and Hello More of the Same!

One needn't be as cynical as Uncle Duke to write the above. Just to say that we'll continue on the prowl next year, and hope everyone who reads and runs has a wonderful, safe New Year's Eve, and a joyous 2012.

Now say goodbye to 2011 with me:

Thomas Becket and the Honor of God

Today marks the feast day of Thomas Becket, a figure I have found to be of interest for years. Enough so that his struggle with Henry II prompted a full length exploration of Becket's fight for clerical immunity from secular law, and its role in the Catholic Church sex abuse crisis. (The link goes to the first draft of the article; the revised--and, in my opinion, much better--version will be published by the Journal of Law and Religion in 2012).

Becket's fight was in a cause that today we could call dubious at best--even in his own day, William, canon of Newburgh,declared that Becket and his supporters brought the crisis on themselves “since they were more intent on defending the liberties and rights of the clergy than on correcting and restraining their vices.” And, his vision of clerical supremacy could be stunningly arrogant, as displayed in a letter he wrote to Bishop Gilbert Foliot, in which Becket compares priests to “Gods,” and declares that Henry should follow the example of the Emperor Constantine, who, refusing to process indictments or bishops, “burned the documents in their presence, saying to them, ‘You are gods, appointed by the true God. Go, and decide your cases among yourselves, because it is not fitting that we men should judge gods.’” (See Anne Duggan, ed. & trans., 1 THE CORRESPONDENCE OF THOMAS BECKET, Letter 96 at 439, 441 (2000)).

And yet--there is something about Becket that captures the imagination. Courage he had, no doubt, and sincerity. After much thought about him, I'm left thinking that he applied medieval notions of kingly honor to the Honor of God (a recurrent phrase in his correspondence and answers to Henry's supporters), and as such could quite reasonably have believed that defending the land, prerogatives, possessions and dignity of the Church were all implicated in defending God’s honor. Any yielding on his part regarding any of these would be a sin, which would not be made right unless restitution and something more, to erase the perceived derogation of God’s honor, were done. Hence his penance after the Council of Clarendon and his dramatic resignation of the archbishopric into the hands of the Pope. Histrionic Becket may have been, but there is no reason to doubt that he held his views sincerely.

Swimming the Tiber in Reverse

Courtesy of the shortly before Christmas posting on the Lead, I became aware of this post from the Catholic Herald, asking "Why do Catholics Become Anglicans?", and hazarding several guesses:

Firstly, marriage, and in recent times, civil partnerships: Because the Anglican church will often bless unions the Catholic Church does not recognise, some people have gone to the vicar for weddings or services of blessing and then stayed with the vicar’s community.

Secondly, aesthetic reasons: I know of some who have decided that their pretty village church with its warm-hearted community is the place where they want to be. Many of these people, in my experience, have not been particularly religious. While they may consider themselves parishioners, they would but infrequently go to the Anglican Church.

Thirdly, church politics: usually when people have a blazing row with the parish priest over the positioning of the hymn board or some other cutting edge matter, they vamoose to another parish. Sometimes, though I have heard of only one case, they storm off “to join the other lot”, as they put it.

Fourthly, female ordination: some Catholic women have left the Church to join the Anglicans so that they can be ordained. Some lay people may have joined the Anglicans because they support female ordination.

In comments, it is suggested that those who cannot conform to the discipline of the Church--divorced persons, GLBT, etc., all leave rather than accept the harder parts of the Christian message propagated by the Catholic Church. I think it fair to say that the commenters (as is not unheard of on the internet) are less charitable than the original post. I also think it fair to say that the original post treats the reasons offered as somewhat trivial in nature. Notably, there is no suggestion that genuine theological difficulties with the positions held by the Church, and resulting loss of faith in its ecclesiology, could play a part.

As it did in my own case. I was raised a Roman Catholic, as I mentioned in my very first post on this blog, and the experience was nothing like the rather superficial disaffection based on essentially unimportant grounds postulated in the Catholic Herald post. Rather, my experience was one of discouragement from a faith the beauty of whose sacramental liturgy spoke to me, but whose insistence on the prerogative to unilaterally decree truth in all areas of life--in areas far afield from the tenets of the faith--made no sense to me, and yet throughout my lifetime has come to dominate the Catholic Church. So, for example, the Church has been induced in recent years to

stop talking so much about the many policy issues they have taken up in the name of social justice. They should concentrate their authority on “the moral social” issues like abortion, embryonic stem-cell research and same-sex marriage, where, he argued, the natural law and Gospel principles were clear. To be sure, he said, he had no objections to bishops' “making utter nuisances of themselves” about poverty and injustice, like the Old Testament prophets, as long as they did not advocate specific remedies. They should stop lobbying for detailed economic policies like progressive tax rates, higher minimum wage and, presumably, the expansion of health care — “matters of public policy upon which Gospel principles by themselves do not resolve differences of opinion among reasonable and well-informed people of good will,” as [Robert] George put it.

This is not true, of course, of all bishops or priests, or applicable to all issues--the bishops have rallied around the right to collective bargaining, for example, and the Church firmly opposes the death penalty. But these issues are not, just as George urges, as critical in remaining a Catholic in good standing as George's issues. Prominent Catholic such as Antonin Scalia publicly disavow the Church's official teaching on the death penalty without censure, while pro-choice politicians may be denied the Eucharist. Even on the pro-life ethic, there is a conservative slant. For a church which seeks to be, as its name denotes, universal, the increasingly strong rightward tilt politically is an obstacle.

As is the insistence on special exemptions from anti-discrimination for Catholic Charities, even where the bulk of its funding is provided by the State.

As is, of course, the Church's abysmal mishandling of its sexual abuse crisis.

These contemporary issues had their analogues in the mid 80s-early 90s as I became an increasingly disaffected Catholic, and learned to question the institutionalism of the hierarchy, and indeed its excessive claims to obedience. In those days, we saw the first wave of sex abuse cases be stonewalled, liberal theologians silenced, despite their eminent standing and good faith, and the promise of Vatican II wither. And yes, the devaluing of women in the name of tradition alone, and the casual cruelty I saw inflicted on gays and lesbians did feed my dissatisfaction--injustice does, even if one is not the target of the injustice! For me, being a dissentient Catholic trained my eye on the institution, and taught me to value openness, transparency, and a broader church--one which ddi not hold itself out to be the only true Church, but a part of the broader Church, the "Church Catholic" rather than the Catholic Church.

[Edited to remove word-processing errors resulting in word salad.]

In becoming an Episcopalian, I found I was free to embrace the many benefits of Catholic spirituality, and I remain grateful to the Roman Catholic Church for my upbringing, and so very much of my faith and spiritual practice. In being free from an ecclesiology that did not fit me, I was able to treasure the good gifts I had been given.

Our Father's house has many mansions. I moved next door.

"And We Know That All Things Work Together For Good"

Yesterday, my mother-in-law, Mabel, died. She had suffered from Alzheimer's Disease for years before I met her, and, when my fiancee (as she then was) and I stayed with my now-sister-in-law, I got to spend a little time with her. She was able to understand who I was in her daughter's life, to take pleasure in feeling that we had, after a fair number of vicissitudes, found our way to each other at last. Her death came after an unexpected sharp illness, and my wife and I had to get a flight the very same day. We bolted from New York, and found ourselves in North Carolina a few hours later.

In meeting with Mabel's friends and family, and hearing their stories about her, I felt that I finally got to, if only indirectly, know a woman I'd only glimpsed. I was asked to help her long-term caregiver, a very kind, loving woman, select a passage of scripture, and also to find a poem by Robert Frost, Mabel's favorite poet. Here's what I came up with.

The scripture verse was Romans 8: 24-28:

For we are saved by hope: but hope that is seen is not hope: for what a man seeth, why doth he yet hope for? But if we hope for that we see not, then do we with patience wait for it. Likewise the Spirit also helpeth our infirmities: for we know not what we should pray for as we ought: but the Spirit itself maketh intercession for us with groanings which cannot be uttered. And he that searcheth the hearts knoweth what is the mind of the Spirit, because he maketh intercession for the saints according to the will of God. And we know that all things work together for good to them that love God, to them who are the called according to his purpose.

The last sentence is especially important to me, especially after I read Susan Howatch's novel Absolute Truths, in which, based on a sermon by Dean Alex Wedderspoon, she glossed the passage as:

suggest[ing] that the sentence "All things work together for good to them that love God" was slightly mistranslated, and that the translation should have been: "All things intermingle for good to them that love God." This would mean that the good and bad were intermingling to create a synergy--or, in other words: in the process of intermingling, the good and the bad formed something else. The bad didn't become less bad, and the dark didn't become less dark--one had to acknowledge this, acknowledge the reality of the suffering. But the light emanating .from a loving God created a pattern on the darkness, and in that pattern was the meaning, and in the meaning lay the energy which would generate the will to survive.

As to the Robert Frost, this is the one that spoke to me:

Nature's first green is gold,
Her hardest hue to hold.
Her early leaf's a flower;
But only so an hour.
Then leaf subsides to leaf.
So Eden sank to grief,
So dawn goes down to day.
Nothing gold can stay.

Vogue la Galère, Mabel. Let your ship sail free.

The Movement and the Moment

The Anglocat knows and has great affection for the good people at Trinity Wall Street. So it is with some perturbation that I see the hardening of lines between Trinity and the Occupy Wall Street movement:

The displaced occupiers had asked the church, one of the city’s largest landholders, to hand over a gravel lot, near Canal Street and Avenue of the Americas, for use as an alternate campsite and organizing hub. The church declined, calling the proposed encampment “wrong, unsafe, unhealthy and potentially injurious.”

And now the Occupy movement, after weeks of targeting big banks and large corporations, has chosen Trinity, one of the nation’s most prominent Episcopal parishes, as its latest antagonist.

“We need more; you have more,” one protester, Amin Husain, 36, told a Trinity official on Thursday, during an impromptu sidewalk exchange between clergy members and demonstrators. “We are coming to you for sanctuary.”

Trinity’s rector, the Rev. James H. Cooper, defended the church’s record of support for the protesters, including not only expressions of sympathy, but also meeting spaces, resting areas, pastoral services, electricity, bathrooms, even blankets and hot chocolate. But he said the church’s lot — called Duarte Square — was not an appropriate site for the protesters, noting that “there are no basic elements to sustain an encampment.”

Yesterday, the OWS folk jumped the fence, led by the Rt. Rev. George Packard, in full cassock:



Bishop Packard was arrested, along with approximately fifty other "occupiers". In the wake of these arrests, Rev. Jim Cooper, the Rector of Trinity, released a statement leaning rather heavily on the argumentum ad verecundiam (that's the "argument from authority" when it's at home):

We are saddened that OWS protestors chose to ignore yesterday’s messages from Archbishop Tutu, from the Presiding Bishop of the Episcopal Church, Katharine Jefferts Schori, and from Bishop of New York Mark S. Sisk. Bishop Tutu said: “In a country where all people can vote and Trinity’s door to dialogue is open, it is not necessary to forcibly break into property.” The Presiding Bishop said: “Other facilities of Trinity continue to be open to support the Occupy movement, for which I give great thanks. It is regrettable that Occupy members feel it is necessary to provoke potential legal and police action by attempting to trespass on other parish property…I would urge all concerned to stand down and seek justice in ways that do not further alienate potential allies.” Bishop Sisk said: “The movement should not be used to justify breaking the law nor is it necessary to break into property for the movement to continue.”

OWS protestors call out for social and economic justice; Trinity has been supporting these goals for more than 300 years. The protestors say they want to improve housing and economic development; Trinity is actively engaged in such efforts in the poorest neighborhoods in New York City and indeed around the world. We do not, however, believe that erecting a tent city at Duarte Square enhances their mission or ours.

I find this argument less than compelling, in the context in which it has been deployed. First, one need not embrace OWS; but Trinity has chosen to do so. It's one thing to say of a movement, "we do not believe it serves the common good" and decline to support it, and quite another to justify a decision to refuse a request from a movement one has publicly embraced. Instead, Trinity grounds its decision in a rather--forgive me, but I can't think of another word--paternalistic statement that it knows best for OWS what would serve its mission. As to Trinity's mission, it is unclear why leasing, for a limited use (because of the prior lease) and on limited terms (to address safety and health issues), a vacant lot which Trinity owns would effect its mission in any negative way. Certainly if OWS declined reasonable terms, that would be grounds for Trinity to deny a lease; likewise if OWS overstayed, Trinity would have the moral high ground. Instead, well, as the comments at the Lead, a pretty mainstream Episcopal news blog show, Trinity's commitment to social justice (of which it rightly is proud) has been drawn into question, and a key question asked, by Jim Naughton (a well established blogger), "whether we can examine the notion that Trinity is an ally in attempting any real economic reform."

I think the question as posed is unduly harsh; but Jim makes a larger point--which is whether Trinity, and other Episcopal parishes, spend so much time focusing on ameliorating the harshest results of our system that they do not reckon with more fundamental challenges to it inherent in Christian ethics. In 1921, Charles Gore sardonically described the viewpoint of so many of his brethren that the laissez-faire system was divinely ordained:

It must have been expressed originally in sublime unconsciousness that the whole industrial system, then in its glory, had been built up on a basis of profound revolt against the central law of Christian morality, ‘Thou shalt love thy neighbor as thyself.’ There are few things in history more astonishing than the silent acquiescence of the Christian world in the radical betrayal of its ethical foundation.

I think that Gore's words remain pertinent today, as demonstrated by the widespread valorization of the market, whether in the cognitive dissonance of professed Christians adopting the explicitly anti-Christian writings of Ayn Rand or the "insipid heresy" known as the prosperity gospel. The 2010 Trinity Institute, Building an Ethical Economy: Theology and the Marketplace, addressed some of these issues, but in an academic/intellectual way. OWS's request provided Trinity with an opportunity to seize the moment, and put itself into relationship with those speaking for the casualties of our system, a chance to put its ideas into action. The bishops are quite right that the decision was Trinity's to make, both legally and morally, but one can regret the chance not taken, and the opportunity foregone in the name of safety.

Laws and Customs

One thing that I've become interested in, very much for its own sake, but also because of its surprisingly strong modern legacy, is medieval law. In my forthcoming article, I'm writing about the effect of the struggle over clerical immunity from secular jurisdiction on the sex abuse crisis in the Catholic Church, but the research opened up whole new vistas of areas as to which I am stone ignorant, but which effect the law in secular society and the church alike. Meeting Henry II again, and Becket, led me to meet Glanville, and now Bracton. Bracton develops the story Glanville begins, and traces it further in time and breadth. I think the relationship between law and custom, in particular, is a particularly lively source of light and heat both; think of how Henry's effort to concretize custom into law, the Constitutions of Clarendon, became a flashpoint in the Becket dispute. By trying to resolve the ambiguities, Henry forced Becket to open conflict; by seeking to exploit them, Becket forced the king to demand clarity.

In all, an interesting study...

Not . . . the Mind Probe!

No, indeed. Instead, a few words about P.R.O.B.E., the mostly forgotten, straight-to-video, Doctor Who spinoff bringing back Caroline John as Liz Shaw, now investigating, er, damned odd occurrences in England, mostly involving actors who look suspiciously like various incarnations of the Doctor. The series was written by Mark Gatiss, who has written several episode of the Doctor Who revival, and is, to put it gently, of variable quality.

The idea of bringing back Liz Shaw is appealing, in part because her character was underused in the 1970 series--her aloof-but-almost-flirty rapport with Nicholas Courtney as the Brigadier, and her independence from the Doctor made her a character whose depths had only been suggested, but definitely warranted further development.

Instead, she got P.R.O.B.E., with its incomprehensible first story, with Sylvester McCoy gurning pitiably after a promising opening, Colin Baker reminding me of why I couldn't stand his era as the Doctor, and Jon Pertwee appearing in the thing, seemingly, only to justify a single joke at the end (admittedly, a satisfying moment, as his character and Liz enjoy a cuppa together). Hints about Liz (when did she start smoking a *pipe*? What is she, Mammy Yokum?), her boss (Oi, is that Leela--oh, she's gone!), and a quick, not unaffectionate, jibe at the Brig--all lost in the welter of lunacy that was the unfortunate first script.

Fortunately, the second story was much better--blessed with a coherent, creepy script, a strong performance by Caroline John, well supported by Louise Jameson (told you that was Leela!). John's scenes with Jameson as her beleaguered boss, locked in battle with an unsympathetic cabinet minister, played by John's husband, Geoffrey Beevers (another Doctor Who alum, so good as the Master in "The Deadly Assassin"), are well played, if a little odd in tone. (Romance or Thelma-and-Louse-style bonding? You decide!)

But the real heart of the story is Caroline John's performance and a bit of a tour de force by Peter Davison. Here's where the story, "The Devil of Winterborne," really shines. The quintessential British cop (Terry Molloy, better known as Davros) doesn't get a look in at the interview of Davison, a suspect for a series of murders as to which Liz suspects a more outré cause. It's Liz (of course) who gets the truth out of Davison's Headmaster Purcell, but how she does it is a credit to them both. She laughs, perfectly pleasantly--sincerely, even--at Purcell's witticisms and sarcasms; she is sympathetic, but she has a razor-sharp ear for when he lies or evades. And Davison matches John here--his retreat is absolutely credible, his feelings of guilt and remorse for his share in events is believable; he uses his Tristan Farnon persona to create a level of sympathy with his character that makes you root (a little!) for him.

The third story, "Unnatural Selection", is much weaker, but enlivened by a strong, cold, mad performance by Charles Kay, whom I well remember as the vicious martinet Alcock in To Serve Them All My Days. The ending breaks down, unfortunately, and lacks the coherence of its immediate predecessor. Still, at least Liz smokes her pipe this time, instead of merely toying with it.

As for the the final episode, "The Ghosts of Winterborne," it has some of the virtues of its predecessor, including Davison's Purcell in an effort at redemption, and the strong acting partnership between John and David--and John and Jameson, again--but feels a bit overcrowded and rushed.

While I can't really recommend the PROBE series, I'm not sorry to have run across them; it's nice to imagine Liz Shaw, 20 years on, still wry, still deploring the military mind, still solving mysteries.

Just--not these particular mysteries, on the whole.

Still Standing at Armageddon, Battling Dutifully Away

Just over four years ago (!), I chided then-aspiring CANA bishop, Martyn Minns, rather harshly for his false statement denouncing as "untrue" reports that the then-Archbishop of Nigeria, Peter Akinola was "an advocate of jailing gays,” in which he said that "Archbishop Akinola believes that all people—whatever their manner of life or sexual orientation—are made in the image of God and deserve to be treated with respect." Archbishop Akinola had, in fact previously issued a statement supporting a proposed Nigerian law that would do exactly that, stating "[t]he Church commends the law-makers for their prompt reaction to outlaw same-sex relationships in Nigeria and calls for the bill to be passed since the idea expressed in the bill is the moral position of Nigerians regarding human sexuality." This was important at the time, as Minns' parishes in Virginia were deciding whether to affiliate with Nigeria, rather than remain in the Episcopal Church, on the ground that it was insufficiently bigoted against gays, but the Nigerian law was further than the upscale parishes might have felt comfortable with. It's one thing not to consecrate openly gay bishops, quite another to criminalize homosexual relationships, speech in favor of gay rights, etc.

So why do I bring this up, four years later? Because Nigeria is in the process of passing a version of the draconian law, under which:

couples who marry could face up to 14 years each in prison. Witnesses or anyone who helps couples marry could be sentenced to 10 years behind bars. That’s an increase over the bill’s initial penalties, which lawmakers proposed during a debate Tuesday televised live from the National Assembly in Nigeria’s capital Abuja.

Other additions to the bill include making it illegal to register gay clubs or organizations, as well as criminalizing the “public show of same-sex amorous relationships directly or indirectly.” Those who violate those laws would face 10-year imprisonment as well.

Needless to say, Archbishop Akinola now retired, "has enthusiastically endorsed Nigeria's anti-gay bill." I have not seen a straightforward endorsement of the bill by Akinola's successor, Archbishop Nicholas Okoh, but, in September of this year, he was quoted as calling gays and lesbians “evil”, saying that God had created women as “helpmates” for men. “What is being known now as 'gay' and 'homosexuality' is contrary to God’s plan for human sexuality and procreation,” the Most Reverend Nicholas Okoh said. “It is against the will of God, and nobody should encourage it, and those who do will earn for themselves the damnation of the Almighty."

CANA members must be very, very proud of how their church is advancing the teaching of Jesus Christ in this Advent season.

"Borking." Again with the "Borking."

Joe Nocera, alas, has fallen into the trap of assuming the conservative founding grudge story is true:

The Bork fight, in some ways, was the beginning of the end of civil discourse in politics. For years afterward, conservatives seethed at the “systematic demonization” of Bork, recalls Clint Bolick, a longtime conservative legal activist. The Atlanta Journal-Constitution coined the angry verb “to bork,” which meant to destroy a nominee by whatever means necessary. When Republicans borked the Democratic House Speaker Jim Wright less than two years later, there wasn’t a trace of remorse, not after what the Democrats had done to Bork. The anger between Democrats and Republicans, the unwillingness to work together, the profound mistrust — the line from Bork to today’s ugly politics is a straight one.

The argument rests on two premises, both fundamentally false. The first is that Bork's rejection by the Senate marked an escalation of the political warfare over the judiciary. The seconds, as Nocera writes, is that "[n]or was Bork himself an extremist. He was a strongly opinionated, somewhat pugnacious, deeply conservative judge," and that, under the pre-existing mores of the Senate, he was entitled to confirmation. Both premises are so demonstrably false as to draw into question Nocera's competence.

First, the rejection of Bork's nomination took place 17 years after the far more dramatic effort on the part of the House Republicans to impeach sitting Justice a William O. Douglas over his off the bench writings (an article on folk music, and a book, Points of Rebellion, urging reform as the best means to avert social crisis, and another article, inoffensive in itself, but published in a risqué magazine), his votes in favor of free speech, and his personal life--Douglas was married to a much younger woman, and had been married three earlier times. (The source linked here--from Wikipedia--is unfortunately the best of a bad lot of online sources about WOD, and, if anything, is far too charitable to then-Rep. Gerald Ford's leadership of this attempt, which most accounts acknowledge was a political effort to break the liberal bloc of the Court). As my old law professor Henry Monaghan--a Bork supporter who testified on his behalf--acknowledged in a 1988 article in the Harvard Law Review "all the relevant historical and textual sources support the Senate's power when and if it sees fit to assert its vision of the public good against that of the President." By contrast, a federal judge is to be impeached only for "high crimes and misdemeanors," a problem Ford elided by redefining the constitutional text to mean nothing; as he said on the House floor, "[t]he only honest answer is that an impeachable offense is whatever a majority of the House of Representatives considers to be at a given moment in history."

To say that the Bork rejection began the hostilities is, to put it mildly, facetious.

As to whether or not Bork was entitled to a seat on the Court, Monaghan's article is clear that the Senate had plenary power to reject him; as to the question whether it correctly deemed him to be too extreme, let me quote an older post:

Bork was rejected--to my mind quite rightly--because of his philosophy. Not because he was conservative--William H. Rehnquist had just been elevated to Chief Justice, after all--but because his conservatism led him to discard whole sections of the Constitution based on his personal ideological committments.

So, for example, Judge Bork contended that the Ninth Amendment, reading that the "enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people" could not be a source of rights which were enforceable, and that only those explicitly enumerated in the text could be. He described its meaning in The Tempting of America, as indeterminate as an "ink blot", and claimed that the judiciary should simply ignore the Amendment, which would give [no] effect to the intention of the Framers. As Bork himself said, "the only recourse for a judge is to refrain from inventing meanings and ignore the provision, as was the practice until recently." (“Interpretation of the Constitution,” 1984 Justice Lester W. Roth Lecture, University of So. California, October 25, 1984).

However, the Framers had originally not included a Bill of Rights because, as recounted in The Federalist Papers, the enumeration of rights might be used as a means to claim that those not named did not exist. Federalist No. 84. Madison addressed this issue in explaining his addition of the text that became the Ninth Amendment:

It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution." (3 Annals of America at 354-363).

So the text of the Constitution, and Bork's own claimed ultimate goal of interpretation--effecting the actual original intent of the framers--both demonstrably preclude his reading of the Ninth Amendment out of the Constitution. nevertheless, for his own policy-based reasons, Bork argues for such a reading-out. As an equation, if T means text, for Bork T=0, absent any reference to original intent, structure, or any other ground.

Similarly, with the First Amendment, Bork argued that the scope of speech protected by the First Amendment should be limited to purely political speech, despite the text of the Amendment which carries no such limitation, providing only that "Congress shall make no law ....abridging the freedom of speech." (Bork's article, "Neutral Principles and Some First Amendment Problems" is published at 47 Indiana L.J. 1 (1971)). Again, Bork's resort to the intention of the Framers over the text was unconvincing to the say the least. Because of the lateness of the addition to the Bill of Rights to the Constitution, there are very limited legislative history materials to use in interpreting the text, but neither Madison's notes, nor those of the other members of the Constitutional Convention support Bork's reading of the Amendment. Nor does the early practice; the Supreme Court in Permoli v. First Municipality, City of New Orleans, 44 U.S. 589 (1844) and United States v. Cruikshank, 92 U.S. 542 (1875) twice held that the effect of the First Amendment was to completely disable Congress in dealing with regulation of speech and religion. (For more detail, see my First Amendment, First Principles at pp. 20-23).

Bork also described the Civil Rights Act of 1964 as enacting a "principle of unsurpassed ugliness" in forcing white operators of public accommodation to serve African Americans. "Civil Rights—A Challenge," The New Republic, August 31, 1963. The emotive language used by Bork was deemed by many on the left to justify Senator Kennedy's assertion that segregation at lunch counters would be a feature of "Robert Bork's America." All of these issues, and Bork's role in the "Saturday Night Massacre" in which he was the third occupant of the office of Attorney General because he alone was willing to back then-President Nixon's position on executive privilege, cost him support. Bork's 1987 claim that he construed the law and the Constitution in each of these areas and did not argue his personal beliefs is belied by his use of emotive language and in many areas his subsequent insistence that his views are not merely constitutionally imperative but morally so. See Slouching Toward Gomorrah (1996) and his contributions to A Country I Do Not Recognize: The Legal Assault On American Values (2005).

I point all of these out because the notion that Robert Bork fell because of his conservatism distorts the history in a manner that suggests that mere political disagreement is enough to torpedo a judicial nomination. In fact, Judge Bork's interpretations of the Constitution were not merely substantively "out of the mainstream"; they were not supported by the very values that he claimed mandated them, and they would erase centuries of constitutional law in favor of a broad power to the Government over what Americans thought and did in their private lives, in the name of morality.

I stand by that analysis; I think the Senate did its job in 1987, and that Nocera failed to do his this week

The Kids are Alright

So apparently, some of the businesses neighboring Zuccotti Park are finding Occupy Wall Street to be a drag. A few specified instances you can sympathize with--local restaurants who have had toilet paper and/or soap stolen, one business who had a sink broken), but I have to say that a lot of it comes off as the whining of the privileged. A mother (a psychologist no less), who is concerned that "she had to shield her toddler from the sight of women at the park dancing topless"? Like that memory'll haunt the poor little tyke as a childhood trauma? Or the fact that "[t]oddlers have been roused from sleep just after bedtime by chanting and pounding drums"? I'm sure it's an irritant, but you're living in a business district; New York City doesn't shut down by toddler bed time. And the notion that the Park (a concrete oval dotted with benches and food trucks) is a green refuge is pretty laughable.

I walk by Zuccotti Park twice a day on my way to and from work, and, I admit it, I've been curious enough to go in a couple times, to try to see what the crowd is like, what they're doing. They're sweeping up after each other, distributing warm clothes and sleeping bags, sharing books ("the People's Library"), and even barbering--I saw one man giving another a classic old-school shave). They're friendly, and eager to talk. Even though I'm all conservatively suited up, nobody has assumed I'm the Enemy--in fact, there are people in business suits in the park. I've been amused by some of the signs--"Ayn Rand was a Sociopath" got a grin from me, and a "second the motion!"--and touched by some of the stories. There are graduates who can't get work, and are lumbered with undischargeable debt, workers who have been laid off, and Americans, young and not-young, who have seen policy emphasize saving the powerful entities that got us into this mess while failing to act to ameliorate the human suffering caused by their recklessness. I saw discussions beginning, and a sluggish media slowly beginning to take notice

The First Amendment is in full flower at Zuccotti Park, and that's a good thing.

So, What's New By You?

Me, I got married last Saturday, a week ago today. The rain held off so that we could have our ceremony outside. Our priest did a wonderful job, including a sermon that began: "Here's the thing about them [that'd be me and my wife]: They're not normal." Good times.

Seriously, it was a wonderful day, and, even though La Caterina and I have been together for over five years it does feel different for me now. And better.

And friends--some of whom I hadn't seen for a criminally long tine--flicker in and out, like we're doing some metaphysical version of the eightsome reel. I'm struck by how fortunate I have been in my friendships.

The rain did come, of course, and that meant we were all indoors, and had no room for a dance floor. (Mind you, as my specialty is the "Gopher Dance", that may have been a mercy). In keeping with my current Leonard Cohen kick, I had hoped to dance with LaC to this, but in a very real way, we already are:

The Holy and the Broken Hallelujah

So for several months now--since a friend of mine referenced it online, as a matter of fact--a particular song has been rattling around in my brain, inviting me to embrace its complexities.

I refer to Leonard Cohen's classic song "Hallelujah." One of the great things about the song is that there is no one correct version of it--the lyrics vary wildly in order of the verses and in content. (This is true, by the way, whether Cohen himself is singing it, or another musician is covering it. In fact, covers tend to be more standardized--John Cale, Jeff Buckley and Rufus Wainwright all use pretty closely similar versions).

Here is, for example, what is posted on YouTube as the "original studio version":



Note the verse:

You say I took the name in vain
I don't even know the name
But if I did, well really, what's it to you?
There's a blaze of light in every word
It doesn't matter which you heard
The holy or the broken Hallelujah

Won't be hearing that again.

Ok, let's go to John Cale:



(Quite possibly my own favorite version, though the next contender is close)

And, just for good measure, a really good late Cohen performance:



So, we have a verse introducing the story of David, singing before the Lord--but with a bitter edge. Then, the story of David and Bathsheba--"You saw her bathing on the roof/Her beauty in the moonlight overthrew you." And, just to complicate matters more, the story blends with that of Samson and Delilah--"she tied you to a kitchen chair, she broke your throne and she cut your hair". Bathsheba may have a verse herself--"I've seen your flag on the marble arch/but love is not a victory march," sometimes feels like a wry observation from a woman whose preferences were not, shall we say, consulted.

The other verses, in counterpart, speak of the bitterness of betrayal, the seeming meaninglessness life and love itself ("maybe there's a God above/but all I've ever learned from love/is how to shoot at someone who outdrew you"") can present at times, and our own crippling inability to "only connect." And throughout, the narrator refuses to accept the stereotype of an easy festal shout of "Hallellujah!" Life hurts, bucko. You may give that shout--but not easily, not without the experience of desolation that the spiritual life doesn't immunize us from.

The biblical references frame the song--in some versions they follow each other, in others not. They invoke Scripture but not in a simple re-telling--the scriptural story goes back and forth with a narrator who (as the verses quoted above shows, and ) is pretty jaundiced about life, and, as this and other verses show, about love--sacred at times (the "Holy Dove was moving too"and yet so transitory. But then what a finish--in the versions that use it:

I've done my best,
it wasn't much.
I couldn't feel
so I learned to touch.
I've told the truth,
I didn't come here just to fool you
And though it seems it all went wrong,
I'll stand before the Lord of Song
with nothing on my tongue but Hallellujah

George Herbert has gotta love that. Seriously, beat this as a theological rumination--it's a testament of a soul battered, not broken, hurt by life but choosing to love, and appearing before the Great Mystery with truth and a kind of hell-busted joy.

A Decade Later

Everyone is, reasonably enough, looking back on September 11, 2001. Decades say something to us, in our desire to track events, and measure lives. My own experience was more opera bouffe than anything else, but here it is.

I was working, at that time, at a small Long Island law firm, and we had a office in the WTC. Fortunately, there was a whole-office meeting out in Nassau County, so that nobody reported to our Trade Center offices that day. Everyone was at the Long Island office.

Except me. But I was not at the WTC either; I had just completed a two day meeting with clients in DC, in which we began laying the groundwork for the litigation in which we challenged the Communications Decency Act's application of "local community standards" to judge the content of material posted online, and, especially, the Government's then-extant strategy of having government employees access websites from conservative jurisdictions, and making the artist/authors stand trial in that jurisdiction, under its standards, a policy under which the most conservative community essentially set the limits for what was permissible throughout the United States.

So, I was at the then-relatively-newly renamed Reagan National Airport, about to fly home. Did you know that RNA is quite close to the Pentagon? Neither did I, then.

About to board my flight, I saw the first plane strike the Tower. I thought it was an accident--an unbelievable accident. I even called home, and left a message asking if I had actually seen that. Then, a woman in an airline uniform ran out from behind the baggage area waving her arms and yelling "GET OUT GET OUT GET OUT!"

As far as I could tell, that was the evacuation protocol. Straightforward, at least.

I went to the main concourse. That's when I saw tape of the second plane, and realized this was big. And deliberate. Another guy, about my age now, maybe a few years older, said to me, "Damn. We'd better try to get a train before they get closed down, too." We walked back to the abandoned baggage area, got our bags, and began to head back to the concourse. All of the people in the airport were out on the tarmac, trying to work non-functioning cell phones. A low, dense black smoke rolled toward us--word of mouth had it that the airport had been bombed. And so, with no clear idea where we were headed, we walked across the grass, down a hill, across a highway, and then into the nearest town. My companion was taken ill on the way down-started feeling his chest tighten--so I helped with his bag. And a bunch of Americans streamed into an American town like refugees.

A nearby hotel (a Marriott) let us in, and started handing out water. My companion (forgot his name after all these years) was taken to a doctor, and I was on my own. I hate to admit it, but I immediately flashed on the Flashman novels, especially Flashy's dicta that if you look like you belong, people will assume you do, and carry yourself with a high hand. Rather than fold up my best suit for the trip home, I was wearing it. I closed my shirt collar, jacked up my tie, and hid my bag behind a chair. The, walking in a swift but unhurried manner into the manager's office, with a cool nod to the secretary, I closed the door behind me and made calls--I couldn't reach my parents, but I did reach my client's Executive Director, and she and her husband offered me a bed for as long as needed one.

From there, it became simple-- a short ride on the Metro--up again after only an hour or so, a walk from the station, and a refuge.

I had it incredibly easy.

My friends didn't all have it so easy. I knew several people, good friends, who had damned close calls that day, and one former work acquaintance who died. My silly little experience was nothing like that--yet I got a taste of something most Americans haven't--a loss of security at the most basic level. I understand the anger the attacks caused at a visceral level, because I experienced first hand the "this cannot be bloody happening" feeling that underlines it so often. Ten years ago, we learned what it was like to be vulnerable. We also learned that there were heroes among us--the passengers of Flight 93, the firefighters who ran in, the police officers who shepherded people to safety, or died trying. The clergy at St. Paul's and Trinity, and St. Peter's, who provided succor and hope. And we saw good in each other--the testy mayor rose to the occasion, and President Bush (not a favorite of mine, shall we say) gave a speech in which he refused the poisonous bait Bin Laden proffered, and rejected the framing of the attack as one done by Islam as a whole against the West, thus denying Bin Laden his dream of a clash of civilizations.

A lot went wrong after that, and history will bring its usual microscope. And so it should. But for today, tomorrow really, because I'm posting this the night before the anniversary, we should, I think focus, on not just our losses, all the losses worldwide from this terrible conflict, but on those who have chosen to strive to redeem the mess--those of all and no faith who have tried to bring peace, to, each in his or her own way, still the ancient brutal dream of Attila the Hun.

As for us, who benefitted from their services, or from luck, or both? We're still here. Peace be upon us all.

On Purity Trolls of the Left

From DKos:

I hate to accuse President Obama of being an Uncle Tom, but like Uncle Tom he counsels accepting our system of enslavement to the rich and powerful. I mean this literally, based on the book that, as Lincoln said, started the War to Free the Slaves. Obama began his Presidency being compared to Lincoln, because he supposedly appointed rivals to his cabinet. If he wanted real rivals, he would have appointed Krugman, Stiglitz, Trumka and Warren, not Summers, Geithner, Donovan, and Clinton. Obama has not shown the determination of Lincoln to restore the union, whatever the cost. If Obama had been president in 1861, he would have negotiated an end to war based on a promise from the slavers to treat their slaves better.

This framing is simply racist. Period. It's also deeply stupid, and smug to boot. And plug-ignorant, as well. (Did the author even read Stowe?)

But more to the point, this sort of thing helps explain why the "professional Left" doesn't find a lot of love in the Obama Administration. Because this is just today's example of this sort of insane nonsense--and check out the comments. Or check out Firedoglake . Or any post by Glenn Greenwald (seriously, I don't even have to pick a specific post; they're all over the top Obama bashing--and in comments and on Twitter GG consistently refers to Obama as "Dear Leader" and his supporters as "cultists").

And then compare this unfortunately named but understandably frustrated response.

Even when they have a point, who can hear them through the hate?

A Commercial Announcement: "Command and Coercion,"

or what I've been doing instead of blogging. This article is, I hope, a section in my projected second book, in which I'll be exploring the relationship of Church and State, not from the perspective of what the Supreme Court has said about it (too muddled with inconsistent and conflicting rationales and results). Rather, I'll be looking at the harm done to religious bodies by efforts to exercise secular-style power.

This section examines the sex abuse crisis in the Roman Catholic Church and the Church's response as in the light of John Henry Newman's views on the Church's "regal function" and the clerical immunity from secular criminal law fought for by Thomas Becket. As this is a draft, a "pre-print," comments especially welcome.

The Letter Killeth...

I have a few thoughts about the symposium issue of the Anglican Theological Review dedicated to Same Sex Relationships and the Nature of Marriage: A Theological Colloquy. The debate is quite interesting in its own right, and I recommend a reading of all of the various papers for a nuanced view of the scope of the disagreement. But I'm not here to recap it, but to riff off a few themes in the main conservative paper "Same Sex Marriage and Anglican Theology: A View From Traditionalists," by John E. Goldingay, Grant R. LeMarquand, George R. Sumner & Daniel A. Westberg. I feel a little bit guilty riffing off the themes that struck me in the paper, in that the Task Force appointed by the Theology Committee of the House of Bishops strove mightily on both sides to express their views in the most charitable way possible, and some of the things I have to say about this paper will not read as altogether charitable. Still, I can't help but feel that a lay reaction to this paper may interest some readers.

First, and foremost, I can't help but note that the paper reaches its viewpoint in a very abstract manner, proceeding from hermeneutics, to scriptural analysis, to science and natural law, and then to natural law and marriage. Now, this isn't a bad approach to certain legal problems--the interpretation of a constitutional text, for instance--but it seems awfully bloodless as an approach to theology. The most passionate, and eloquent, passage in the paper addresses hermeneutics:

we are trying to achieve an objective understanding of this text according to its own presuppositions and concerns. There is an analogy here in the process of gaining an objective understanding of other persons whom we love. Because of our commitment to them, we want to know them in reality, and not just make them a projection of our own interests. We commit ourselves to understanding them in their distinctiveness, even where we may find them difficult or objectionable. Often we find when we do that, what seemed objectionable, becomes, if not likable, at least understandable. We may then be able to learn from who they are--which does not happen either if we reject them or if we assimilate them too quickly to what we understand and accept.

(14)

Pretty good, hey? To quote the great Mark Twain, Sir, it is pie. But, what's interesting about the paper is that it doesn't apply this standard to the people most affected by the doctrine it defends: our GLBT brothers and sisters. There is no effort to engage with the experiences, the pain, the lives of those at the center at the debate. Now, I'm a great believer in intellectual rigor. But when it runs away from the Holy Spirit, and the experiences of those impacted by its sweeping analysis, it becomes scholasticism--a closed system, which may or may not connect with reality at a given point.

Here's another question about hermeneutics: The paper stresses the importance of fidelity to Scripture--not in a fundamentalist way, but to the whole tenor of Scripture, a general viewpoint with which I agree--and finds in the few pieces of Scripture that touch upon homosexuality (in some way) and marriage a point of contact with natural law theory. But the paper acknowledges the prospect that there are "moral issues where subsequent reflection and experience led to genuine change in the church's teaching." (20). The paper gives three examples, two of which are non-controversial, and the third which is--interesting:chattel slavery, the subordination of women, and the prohibition of usury. (Id). Wait a second. What about the prohibition of usury? Ah:

The prohibition of usury, for example, was held for centuries, and came to be seriously questioned both on the adequacy of the interpretation of the few scriptural texts that were thought relevant, and of the philosophical understanding provided by Aristotle of the nature of money.. In that case, the evidence to decide the issue comes from reason and Scripture and not from tradition. In other words, the challenge to change the canon law on usury could not be answered simply by appealing to the many centuries when the prohibition was accepted.

(11).

At the risk of seeming pedantic, my copy of Aristotle's Politics at I x describes usury as unnatural, stating further that "The most hated sort [of wealth-getting], and with the greatest reason, is usury, which makes a gain out of money itself, and not from the natural object of it. For money was intended to be used in exchange, but not to increase at interest. And this term interest, which means the birth of money from money, is applied to the breeding of money because the offspring resembles the parent. Wherefore of all modes of getting wealth this is the most unnatural." (That's Jowett's translation. The same text is less colorfully but consistently translated at p. 87 of the Penguin translation by TA Sinclair and & Trevor J. Saunders (1981)).

I don't see how Aristotle helps undermine the canon law here. (Fairness requires me to point out, though, that in the Nicomachean Ethics, Aristotle's theory of equality of exchange does suggest that individual transactions are not the ideal context of ensuring equality; medieval thinkers used this passage to moderate the canon law on usury, but the more specific passage in the Politics seems to me to make this much less obvious than the paper assumes). How about Scripture? A quick review of the texts quoted by Jeremiah O'Callaghan in his 1825 tract Usury, or Interest at 5-8 yields 18 separate prohibitions and condemnations of usury from the Gospels (Matthew and Luke) to St Paul and the Revelation, and a series from the Old Testament from Leviticus to Ezekiel, as well as the Psalms. And let's not forget the earliest Christians' practical common possession of all assets (Acts 4:32). If this is a "few" scriptural texts, the verses regarding homosexuality--the paper itself cites a total of five directly relating to same-sex relationships (at 26-28)--are dramatically fewer in number.

The paper contends that the prohibitions of same-sex relationships (the paper's characterization, not my own) gain in coherence because of their consistency and harmony with the texts relating to marriage, and natural law. But surely Jesus's concern for the poor, and distrust of the power of riches--fuels the prohibition of usury? It is itself a major theme of both Old and New Testaments. And, one might add, quite defensible today, in our post-crash world, as argued by Brian McCall in a recent article in the Cardozo Law Review. (McCall's article draws on Aristotle, Jewish and Roman law as well as the canon law tradition, and--wait for it--natural law).

So why am I brow-beating the paper and its authors on an ill-chosen example of "acceptable" moral development in this context? Because the paper's hermeneutic is inconsistently applied--for the change which is more comfortable to a modern conservative--the devaluation of Jesus's teachings with regard to money, and the prohibition of usury before and after His life, a significant number of specific passages which fit with the overarching themes of Scripture can be dismissed. For a change that is uncomfortable to them, a few snippets linked rather tendentiously to marriage must be honored. It's interpretation in support of what is most comfortable to the interpreter.

Which brings me back to where I began. The paper's most eloquent passage calls for knowing the other and understanding that other where he or she is. That isn't limited to Scriptural interpretation. With greater knowledge, comes less discomfort and more empathy. And possibly with understanding would come a theology that does more than lay burdens on others, while casually relegating pastoral care to a single sentence bromide, followed by recommending sublimation and/or a "therapeutic change in orientation."

Steppin' Out With STC...

So, I have recently received as a gift a subscription to The Anglican Theological Review, and, in reading my first two issues, found an interesting article by Jeffrey Barbeau, Coleridge, Christology and the Language of Redemption, which gave me new insight into the poet as theologian. The article traced Samuel Taylor Coleridge's symbolic view of the atonement (or, as he called it on at least one occasion, at-one-ment, a usage I've seen fairly often, though not attributed to Coleridge) and his concern for recapturing the language of Scripture as deployed in context. It's worth reading.

Bit here's a small facet of the article that leapt out at me: Coleridge, as quoted by Barbeau, rejected the notion of Jesus as pure example, or teacher: "But I want, I need, a Redeemer, and this is possible only under the two-fold condition which I find asserted in the New Testament and the creeds of the Universal Church--that he is my fellow-man but not my fellow-creature." (280; emphasis in original).

Coleridge further explains that the effect of Redemption is to replace the Old Man with the New--the self-centered with the Christ-centered life, which has the effect on us as of liberation from bondage, beginning our path to a new life. As he writes, the goal is for the human will to be "concentric" with that of God. And, Barbeau notes, these evolving views on the Atonement reflected Coleridge's own experience as he dealt with his opium use, and his "emerging recognition of the need for complete dependence on the Absolute Will". (276, n. 24).

Sound familiar? It should: In AA, the Third Step is for the alcoholic to have "[m]ade a decision to turn our will and our lives over to the care of God as we understood Him." And, if STC is to be believed, such is the beginning of the human side of the action of at-one-ment.

Good Friday

For years, when I was a teen, I struggled with the name of this day--"pretty bloody awful Friday, if you ask me," I would snark in my best sub-Wodehousian manner.

Very clever.

Then, after my college years, I had a spell of alienation from the Church (Roman) and had not yet found my spiritual home in the Episcopal Church. My twin and I even scheduled inadvertently scheduled a birthday party on Good Friday, having lost track of Easter.

Oops!

Some years later, after my return to organized religion, as an Episcopalian, I hit bottom as an alcoholic. On Good Friday. On the day of our Lord's suffering for us, my own self-inflicted suffering reached its nadir. Good Friday has never been the same.

The difference was that, in my worst moments, God reached out to me again and again, and in the most unlikely ways--the Good Samaritan (an ex-convict, just out of prison, who walked me home, and thanked me for letting him help me), a good friend who bagged his plans for that Saturday night just to be with me, and so many others. (Hey, you want to her the full qualification, get to a meeting).

At the time, the irony seemed bitter--that I was such a drama addict that I had to stage my own collapse to last through Easter morning. In retrospect, though, I think it was entirely appropriate--I was past subtlety; I needed God to speak to me not with the "small, still voice" but fortissimo. Fortunately, He obliged.

So now Good Friday is inextricably linked for me with my own redemption not just in theology but in lived experience. I'm off to mark the occasion with the Liturgy of the Hours tonight, and then tomorrow I'll be at the Easter Vigil, where we celebrate our journey by God's Grace out of darkness into light.

Why Cats Don't Litigate (Or, at any rate, not well)

So, we have an extra cat, a beautiful tortoiseshell cat who, I swear, I did not let into the apartment. La Caterina claims that she didn't either, but all I know is one day I came home from work and heard this little creature's plaintive cry of "peep! peep!" coming from inside the house. And sure enough, she was there. Really, that's her. On my table. Reedin' mah paper.

So, she's slowly winning over the other cats, but observing the horde at feeding time, I now understand why cats would not, for all their admitted wiliness and intelligence, make good litigators. They do not understand what an experienced litigator friend and I have come to call "the Schmuck Rule." (Except we use a harsher term. In English). As in, "don't be the schmuck." By which I mean that it's every bit as important to convince the trier of fact or law that she or he wants to rule in your favor as it is to convince her that she can rule in your favor. So--don't be the schmuck.

Alas, most of our cats haven't learned that lesson. Oh, Giles, the benevolent, kindly watcher-cat has, and Elvis who is just too nice to be admitted to the NKA (Naughty Kitten Association) or even the less hard edged ANK. But the rest will crowd her out at the food bowls, and one (a feline version of Anthony Ainley) tries to bully her. They are, in short, the schmuck. And sure enough, I give our "newest little treasure" (as our landlord rather archly called her) extra treats and snuggles to make her feel welcome.

And teh boycott isn't working anyway; where Giles and Elvis lead, the others will, eventually, follow.

John Donne's Day

Today we celebrate John Donne--priest, poet, and lawyer. (You can see why he gives me hope!) Donne's poetry ranges from the satirical and sly, the mordant, the holy and the mystical. (A wonderful mordant poem-ette, written on his arrest for marrying without his wife's legally-required consent: "John Donne/Anne Donne/Undone"). A great lover of life, he was drawn into the Church progressively. He wrote, in Holy Sonnet XIV:

Batter my heart, three-person'd God ; for you
As yet but knock ; breathe, shine, and seek to mend;
That I may rise, and stand, o'erthrow me, and bend
Your force, to break, blow, burn, and make me new.
I, like an usurp'd town, to another due,
Labour to admit you, but O, to no end.
Reason, your viceroy in me, me should defend,
But is captived, and proves weak or untrue.
Yet dearly I love you, and would be loved fain,
But am betroth'd unto your enemy ;
Divorce me, untie, or break that knot again,
Take me to you, imprison me, for I,
Except you enthrall me, never shall be free,
Nor ever chaste, except you ravish me.

Anglocat on the Stump!

Your Anglocat has been invited to speak at the St. Joh's University Conference on The Theology of Work and the Dignity of Workers. (I'm speaking tomorrow, Saturday, at the wildly optimistic hour of 8:30 a.m.) Most of the speakers will be addressing these issues from either a labor law or a Roman Catholic perspective. My presentation will be on the Second Oxford Movement and its embrace of the dignity of labor. Here's the abstract:

In the late 19th and early Twentieth Century, the Second Oxford Movement built off the Anglo-Catholic foundation laid by John Henry Newman, John Keble, and Edward Bouvier Pusey. As Anglo-Catholicism grappled with the scientific and social turmoil of the end of the Victorian Era, and the aftermath of World War I, its leaders, especially Bishop Charles Gore, embraced not only the sacramental aspects of Catholic theology, but its commitment to "the Way" as the primary meaning of Christianity. For Bishop Gore, one key component of the Way was rendering justice to workers, which, to his mind, entailed the right to a seat at the table, despite the controversy that view engendered.

The full agenda of the conference is here.

Go to the Mirror, Boy!

So, along the way of this research I'm doing for my almost-complete-first-draft article on the role of canon law in the sex abuse crisis in the Roman Catholic Church, I found myself reading some fascinating works on medieval law--Glanville's Treatise on the Law and Customs of the Realm of England, written in the time of Henry II (around 1189), and The Mirror of Justices (c. 1328). Now, let me be frank here: This stuff is great. It's re-ignited my interest in jurisprudence in a big way, because I love seeing things--ideas, systems, even novels--in the root, and watching them grow. So, in Glanville we see the latest new thing: trial by jury--in a highly embryonic form, where the "jury" is actually a group of knights familiar with the parties and facts, and the first twelve to agree--there's your verdict! A long way from the current system, but a lot more reasoned then trial by ordeal, duel or the delightful farce of compurgation. (R.H. Helmholtz actually mounts a clever defense of compurgation as not intended to resolve factual disputes, but to clear one deemed by the court to have been unjustly accused, and to restore their standing in the community in his admirable The Canon Law and Ecclesiastical Jurisdiction from 597 to the 1640s.)

But I want to say a word about the Mirror. The Mirror of Justices, it turns out, is as much hoax as history, jape as jurisprudence. The anonymous author (Andrew Horn? Perhaps.) basically, well, made up a lot of stuff that he thought would be good law, and did so plausibly, with so many learned references (which, if you sought out the works cited--a lot harder in the 1320s, when this little number was pulled off, than it is today--didn't support the propositions for which they were advanced. It's quite something to read F.W. Maitland's Introduction, in which he sniffs at "the credulous Coke" (intro at x), who "filled his Institutes with tales from the Mirror" and to realize that he's referring to one of the great figures of English law,Lord Chief Justice from 1613-1616, and the Institutes so tainted were used to train English and American lawyers until the end of the Eighteenth Century. The Mirror, in short, is the most successful "Cicero Memorandum" in history.

What's that? I hear you ask. Ah, welcome to my world. A "Cicero Memorandum" is the creation of John Jay Osborn, the novelist, lawyer and law professor best known for his first book, The Paper Chase. His follow-up, The Associates (1979) (the linked review is, in my judgment, overly harsh), introduces Craig Littlefield, an associate whose real passion is jurisprudence, and who comes up with an interesting solution to law firm ennui:

"I've decided that from now on, all my memoranda will be jurisprudential by nature. Suppose I am asked a tax question? Will I go to CCH or Prentice-Hall manuals? Will I look up the cases? No. I will turn to Austin, H.L.A. Hart, Lon Fuller, Pollock, Gierke. I'll give them Cicero, St. Augustine, Clactus. Perhaps even Dworkin and Cohen. All the good philosophers."

"You'll be fired. Of course you know that."

"I doubt it. They probably don't even read my work . . . My theory is that if I return to basics, to fundamental principles, the answers I give them will be correct, and should correspond with whatever conclusions an associate would reach by reading the cases. Now, if my answer is technically wrong, there will be only two possibilities. Either my analysis from first principles will be in error, or the current law is wrong."

(p. 157). Asked how he'll disguise his references, Littlefield blithely decides to make up case citations, and lose the books until the partners lose interest. He gets away with several "Cicero Memoranda" as he terms them, convincing himself that "[a]pparently, decisions interpreting section five-o-one(c)(three) of the Internal Revenue Code conform exactly with Rawls' theories of distributive justice, or the partners do not read my memorandum." (p. 181). Of course, it all ends badly. For a little while.

Not only was the Mirror successful in the short run, but it enjoyed a nearly 500 year lease on life as a source of law, on its own and through Coke. It is the ultimate Cicero Memorandum. And the fact that I was able to get a beautiful copy of the 1895 Selden Society folio size edition (marred only by the fact that I have to cut the leaves myself) is just extra gravy.

Armstrong: The End of the Affair

According to the Colorado Springs Gazette, Father Donald Armstrong has been sentenced in accordance with his plea bargain:

A judge Friday sentenced the Rev. Donald Armstrong to four years probation for his no-contest plea to one count of misdemeanor theft of funds from the Colorado Springs church where he once served as rector.

Fourth Judicial District Judge Gregory R. Werner also ordered Armstrong to pay restitution in the amount of $99,247 that was diverted to pay for his son's and daughter’s college education. The money came from a trust fund originally set up to pay for the education of seminary students.

But Werner rejected a request by a special prosecutor to order Armstrong to repay Grace and St. Stephen’s Episcopal Church an additional $191,753 in church funds that also were spent on his children’s education.

Werner cited testimony by three former church officials who testified they knew of a deal where the church paid the tuition in lieu of giving Armstrong a raise for several years.

The judge also ordered Armstrong to perform 400 hours of community service not related to his current church and forbade him from managing the funds of any trust, business or legal entity.

Well, that testimony was a variable I hadn't foreseen. The testimony itself depicts a situation which strikes me as irregular at best--that the two wardens and another church official knew about Armstrong receiving college payments instead of raises, but that the vestry did not--and, in view of their joining the breakaway church led by Armstrong, St. George's, my cynic-o-meter is bleeping. Still, I stand by my original analysis: dislike Father Armstrong's churchmanship though I do, this was an appropriate resolution, properly geared toward not inflicting more harm than necessary. I note that, as I suspected, the prosecutors were not amused by Armstrong's attitude in the wake of the plea's negotiation (from the first linked story):

Prosecutors had asked the judge to consider jail time for Armstrong, without saying how much.

“I’m sure if church members had their way they would lock him up and send him to Elba,” said Pueblo County Deputy District Attorney Stephen Jones, alluding to the island near Italy where Napoleon was exiled.

Jones served as special prosecutor in the case because former El Paso County District Attorney John Newsome had been a member of the vestry, or governing body, at Grace Church.

Jones also asked the judge to order Armstrong to write a public apology to his former congregation, noting remarks Armstrong made after entering the no-contest plea in which he continued to maintain his innocence.

“It seems like there’s been no acceptance on the part of Mr. Armstrong to the reality of what he did,” Jones said.

The judge acted within his discretion in declining to order an apology, noting that the gap between the two congregations was "a huge divide." My only qualm about this resolution is the thought that Fr. Armstrong may in fact think he "got over." But the fact is, he didn't. Probation, being barred from fiduciary positions, and the public embarrassment--these all exact a cost, to say nothing of the months of anxiety he and his family must have suffered. Moreover, even after he completes his probation, he will still have a theft conviction on his record.

Fr. Armstrong is not in TEC anymore. So I don't feel an further comment from me is warranted, other than that I hope he will view this result as a what in fact is--a second chance and that his future ministry will be worthy of it.

John Spencer Explains It All

This bit, from The West Wing nails it--and is beautifully performed by the late John Spencer, with the support of Joanna Gleason:



I admired Spencer's work in a lot of different roles, but his portrayal of Leo McGarry was, I think, the crowning moment of awesome in a superb career. I was having a West Wing DVD retrospective this week as a "study break" from writing, and happened to hit this episode. Just outstanding work, especially in this scene.

Canons of Deconstruction

Well, still on my blogging sabbatical, working on a law review article on the role of theology in the RCC sex abuse crisis. The interesting thing I've been finding is a complete lack of comprehension on the part of non-Catholics of the Church's rationale underlying its defensiveness and secrecy, and, on the other hand, a complete lack of comprehension on the part of the hierarchy and its defenders of the outrage secular society (as well as, of course, many Catholics) feel as a result of the scandal. To a surprising extent, a large part of what I'm doing is interpreting each side's position, and trying to put it in a context the other might understand.

That doesn't mean that I think the RCC position is valid; I don't. But it's a position that has roots all the way back to the Twelfth Century, and that's not a tradition that one can just be written off as a post-hoc rationalization. It's been fascinating, too, spelunking through medieval history and theology, and reacquainting myself with such towering figures as Henry II, Thomas Becket, Augustine, Aquinas, and John Henry Newman. And meeting several new figures, including Gilbert Foliot, whose complexity of thought and moderation make him much more than a critic of Becket.

I'll link to the essay when it's finished.