Horatio

Horatio
[Photo by Jacquelyn Griffin)

Monday, April 29, 2013

A Festschrift Makes a Lovely Present

As I have gotten older my tastes have gotten, well, specialized. So for my birthday I allow myself to buy a book that may be a little harder to find, possibly rare. Something nobody else is likely to buy for me. This year's book was Essays Presented to Charles Williams (1947)--a festschrift written in William's honor to mark his departure from Oxford at the end of World War II,but one that they ended up publishing as a memorial to him in the wake of his sudden death.

Oh, who is "they," you ask? Only, y'know, the Inklings, in their one jointly authored book. Dig the table of contents, my friends:

1. C.S. Lewis: Preface
2. Dorothy L. Sayers: "'... And Telling you a Story': A Note on The Divine Comedy"
3. J.R.R. Tolkien: "On Fairy-Stories"
4. C.S. Lewis: "On Stories"
5. A.O. Barfield: "Poetic Diction and Legal Fiction"
6. Gervase Mathew: "Marriage and Amour Courtois in Late-Fourteenth-Century England"
7. W.H. Lewis: "The Galleys of France"

[By the way, recent scholarship is doing a lot to rehabilitate W.H. Lewis's reputation. He did suffer from a lifelong battle with alcoholism, as noted in many depictions of his brother's life, but Major Warren Lewis was a pretty good popular historian, the author of a series of explorations of Seventeenth Century France that are quite readable, and whose work is worth a look for any fans of the period.]

Anyway, C.S. Lewis's preface is a delight in introducing what Williams meant to his friends, and tells a great deal about the narrator too. Here's Lewis describing Williams's serene spiritual side compassionating Williams' dour, pessimistic side:
He saw its point of view. All that it said was, on a certain level, so very reasonable. He did not believe that God Himself wanted that frightened, indignant, and voluble creature to be annihilated; or even silenced. If it wanted to carry its hot complaints to the very Throne, even that, he felt, would be a permitted absurdity. For was that not very much what Job had done? It was true, Williams added, that the Divine answer had taken the surprising form of inviting Job to study the hippopotamus and the crocodile. But Job's impatience had been approved. His apparent blasphemies had been accepted. The weight of the divine displeasure had been reserved for the "comforters", the self-appointed advocates on God's side, the people who tried to show that all was well--"the sort of people," he said, immeasurably dropping his lower jaw and fixing me with his eyes--"the sort of people who wrote books on The Problem of Pain."
Beyond that great comedic deadpan, and being the best writer to rock a semi-colon I have ever read, Lewis is one of the very few writers about English literature to make me feel, and deplore, my own ignorance of far too much. He makes me want to remedy that, plunging headlong into medieval texts. To the extent I've remedied some of those defects, the credit goes to Lewis, and of course to Jim Earl, who taught me to read the good stuff, and miss the dross.

Sunday, April 28, 2013

The Warden of Wall Street

So, I took a few days off from the blog. Largely, it's because I've been working on two long-form writing projects, and spent a lot of my energy there, but also because a story I read affects some people I'm close to.

Now, Trinity Church is a very special place in my personal story. I was received into the Episcopal Church there, just about 20 years ago. My spiritual director is HQ'd there, I have personally benefitted from its ministries, and, over the years, I have participated in those ministries--leading classes, prayers, and other associations, dating back from the time I was received. I am, as I have been described, a friend of Trinity.

And I'm glad of that. Trinity's motto, "for a world of good," is one it has earned. Music, liturgy, and oft-unnoticed service both at home and abroad:
As the current head of Trinity, [Rector James] Cooper has helped to carry on the church’s original mission to serve the poor and isolated. The church was established in 1697, predating the city of New York.
Cooper has worked tirelessly alongside groups including the Downtown Alliance, an organization that provides funding to house the homeless in lower Manhattan. The church also gave a leadership grant to the Downtown Alliance’s Back to Business grant program, which is focused on helping small businesses in Zone A and lower Manhattan recover from the effects of Hurricane Sandy.

In addition, Cooper helped to steer funding of $250,000 to the Robin Hood Foundation, supporting the transition of veterans returning from active duty in Afghanistan.

Other initiatives Cooper has lent his time and talent to include a Relief Bureau to counsel the sick and jobless, food pantries and soup kitchens at Trinity chapels around the city, global grant programs that award millions both abroad and to vital programs in New York as well as the massive relief effort and shelter the church provided to the rescue workers at Ground Zero after 9/11.
These are very real contributions to the City and the world. Yet, as the Times story notes, the Church has been "racked by infighting in recent years over whether the church should be spending more money to help the poor and spread the faith, in New York and around the world. Differences over the parish’s mission and direction last year led nearly half the 22-member vestry — an august collection of corporate executives and philanthropists — to resign or be pushed out, after at least seven of them asked, unsuccessfully, that the rector himself step down."

That's an admirably concise and non-judgmental summation of a controversy that has been reported in far more bitter terms elsewhere, and earlier. The internecine conflict appears to have been quite brutal. The Times, and every other story, agrees on one facet that appears to power the story: Money. From the NYT again:
It reported $158 million in real estate revenue for 2011, the majority of which went toward maintaining and supporting its real estate operations, the financial statement indicates. Of the $38 million left for the church’s operating budget, some $4 million was spent on communications, $3 million on philanthropic grant spending and $2.5 million on the church’s music program, church officials said. Nearly $6 million went to maintain Trinity’s historic properties, including the main church building, which was built in 1846; St. Paul’s Chapel; and several cemeteries, where luminaries including Alexander Hamilton and Edward I. Koch are buried. The remainder went into the church’s equity investment portfolio.

****

Trinity has released other estimates of its wealth over its 315-year history, but none recently. From 1909 to 1939, parishioners could find bare-bones annual statements at their pews; before that, the last disclosures beyond the vestry were in 1814.

“Trinity is moving more and more toward a transparent, modern system of governance, though not without bumps and bruises and pain,” said Mr. Cooper, adding that he supported the disclosure.

Some details are not included on the form, church officials said, like Mr. Cooper’s $475,000 annual salary — which rises to a total compensation of $1.3 million when his pension and the estimated cost of his residence in a $5.5 million, church-owned SoHo town house are added.
Now, when I first read these numbers, Trinity's percentage of income spent on diversification of investments and its endowment seemed disproportionate to me. But I have the financial savvy of a cocker spaniel (albeit a particularly cute, soigné cocker spaniel), so I asked a friend who had, you know, a clue. He told me that the basic structure sounded about right (in the sense of prudent), though suggested that some of the specifics of the spending priorities within the church budget might be debated.

So, why does the story still leave me dissatisfied? I think it could be what I call "The Warden Factor" You don't know Anthony Trollope's The Warden (1855)? What are you doing reading this blog, then? Seriously, it's the beginning of Trollope's brilliant Chronicles of Barsetshire and a lot more worth your time than anything I have to say.

In the novel, the Rev. Septimus Harding, a clergyman appointed to head a charitable institution at a stipend that is, for the work he does, lavish--it's the result of the appreciation of the property values which are the basis of the endowment, and, over the years, the salary for the Warden (the Chief Executive Officer, if you will), has risen to become disproportionately high for a clergyman engaged in charitable work. In the novel, Trollope refuses to accept a simple manichean good/bad distinction between his characters. Septimus Harding, a good, conscientious clergyman, is a much better man than his adversaries--but, he comes to believe that he is wrong and they are right, as in this scene when he hands a newspaper editorial critical of him to his daughter Eleanor:
"An action has been taken against Mr Warden Harding, on behalf of the almsmen, by a gentleman acting solely on public grounds, and it is to be argued that Mr Harding takes nothing but what he received as a servant of the hospital, and that he is not himself responsible for the amount of stipend given to him for his work. Such a plea would doubtless be fair, if anyone questioned the daily wages of a bricklayer employed on the building, or the fee of the charwoman who cleans it; but we cannot envy the feeling of a clergyman of the Church of England who could allow such an argument to be put in his mouth...."
As Eleanor read the article her face flushed with indignation, and when she had finished it, she almost feared to look up at her father.

"Well, my dear," said he, "what do you think of that;—is it worth while to be a warden at that price?"

"Oh, papa;—dear papa!"

"Mr Bold can't un-write that, my dear;—Mr Bold can't say that that sha'n't be read by every clergyman at Oxford; nay, by every gentleman in the land;" and then he walked up and down the room, while Eleanor in mute despair followed him with her eyes. "And I'll tell you what, my dear," he continued, speaking now very calmly, and in a forced manner very unlike himself; "Mr Bold can't dispute the truth of every word in that article you have just read—nor can I." Eleanor stared at him, as though she scarcely understood the words he was speaking. "Nor can I, Eleanor: that's the worst of all, or would be so if there were no remedy. I have thought much of all this since we were together last night;" and he came and sat beside her, and put his arm round her waist as he had done then. "I have thought much of what the archdeacon has said, and of what this paper says; and I do believe I have no right to be here."

"No right to be warden of the hospital, papa?"

"No right to be warden with eight hundred a year; no right to be warden with such a house as this; no right to spend in luxury money that was intended for charity.
The cases are not entirely apt; I have no doubt that Rev. Cooper works a great deal harder than did Rev. Harding, and, unlike the fictional Hiram's Hospital, the bulk of the income does not go to the incumbent by any stretch of the imagination. But the vexed relationship between God and Mammon is touched on here as in the novel; as the Telegraph quotes, the concerns that Trinity's philanthropy budget has remained roughly the same while other portions of the budget have "soared" and the Rector's compensation is described as "a Wall St pay and conditions deal." The Times cites a complainant describing the church as having become too "corporate." The notion that Trinity has become too much of the world, too comfortable among the Wall Street titans it resides among, seems to have some emotional resonance.

Consonant with this, the favorable article in the New York Press previously linked adds to its praise of the rector "But of all his responsibilities, perhaps the most important is the management of Trinity Real Estate, which handles the parish’s 6 million square feet of commercial real estate in Lower Manhattan. The income generated from the church’s real estate holdings, which Trinity has held for more than 300 years, enables the organization to sustain and develop programs and ministries around the world."

That--jars. It may even be true, as things currently are, but should it be? Is this yet another instance of that chilling line from The Mission, "thus we have made the world"? If so, what do we do about it?

Tuesday, April 23, 2013

A Moment's Peace

Well, we've had quite the week, haven't we?

The murderous attack in Boston, and the resultant manhunt and ephemeral questions of whether the living suspect would be treated as an enemy combatant (he wasn't), the appalling accident in West, Texas, and the high cost in human lives of ignoring safety regulations. Even the "good" news last week--the Virginia Supreme Court's finding that the Falls Church property reverted to the Episcopal Church and continuing diocese--should not be a cause for triumphalism. The fact that it came to this represents a failure of all involved, a failure of imagination, of the ability to reach beyond the law's requirements. The Diocese and National Church could not countenance the parish incumbent's and departing majority behavior, but neither was this how things should have ended.

But there is still life and beauty in the world. La Caterina, first and foremeost. My cats still crowd my keyboard, wanting snuggles, my feral friends Sherlock and Poppelthwaite grow ever more affectionate, while Mr. Giles remains an ideal cat friend.

Liturgy goes on, the Daily Office goes on. A new writing project takes on a new urgency and life of its own.

And moments of joy keep turning up. A sheet of flowers in the Brooklyn Navy Yard. A birthday dinner with old friends and new. A discussion of Leonard Cohen and his music turns up an ineluctably beautiful moment of his voice blending with that of Julie Christensen and Perla Battalla.

Listen to this all, but note how the voices blend at 4:00 on:



And note how the sacred and profane blend in Cohen--this song conveys the ache of desire in the lyrics and in (in this video, at any rate) performances, with extraordinary sharpness. And then listen to Christensen and Battalla do "Anthem":



And that's life, innit? Sorrow, joy, insight, the spirit and the flesh, all mixed up in a never ending symphony, sometimes discordant, sometimes filled with
Sounds, and sweet airs, that give delight and hurt not.
Sometimes a thousand twangling instruments
Will hum about mine ears; and sometime voices
That, if I then had waked after long sleep,
Will make me sleep again; and then in dreaming,
The clouds methought would open, and show riches
Ready to drop upon me, that when I waked
I cried to dream again.
So we pass this tough week, and move into the next phase of the dance.

Sunday, April 21, 2013

They Can't Believe They're Losing to these Guys?



In my last two posts (here and here) I examined the decision of the Supreme Court of Virginia in Falls Church v. PECUSA. In so doing, I looked at some of the reaction to the opinion, and found among some of the "reasserters" a level of surprise and shock that frankly makes no sense to me.

(I should note, in view of the fact that I have directly engaged with A.S. Haley, the "Anglican Curmudgeon," that I am not referring here to his writings on the decision. While no one commenter prompted the reflection, an exchange with C.R. Seitz, of the Anglican Communion Institute crystallized my thoughts.)

I mean, I understand anger; the supporters of secession are acting based on deeply held views; though I believe them to be profoundly in error, they are paying a high price for acting on what what they believe to be right. But surprise?

Look, let's game it out:

1. The Supreme Court has long held that
"The law knows no heresy, and is committed to the support of no dogma, the establishment of no sect. . . . no "arbitrariness" exception -- in the sense of an inquiry whether the decisions of the highest ecclesiastical tribunal of a hierarchical church complied with church laws and regulations -- is consistent with the constitutional mandate that civil courts are bound to accept the decisions of the highest judicatories of a religious organization of hierarchical polity on matters of discipline, faith, internal organization, or ecclesiastical rule, custom, or law.
2. More recently, the Court has acknowledged a limited role for civil courts in applying "neutral principles of law" to property disputes arising out of schism. In so doing, the Court provided that a hierarchical church could with "minimal" efforts, create an enforceable trust over parish property, and all that would be required would be for "the constitution of the general church [to] be made to recite an express trust in favor of the denominational church," to which "civil courts will be bound to give effect."

3. In the same year in which the Court stated this, the Episcopal Church adopted the Dennis Canon, expressly created such a reversionary trust in case of schism.

Now, right or wrong, love or hate it, on what view of these facts does this not make an effort on the part of a seceding parish or diocese to retain said property a mighty heavy lift? You can't question the procedural legitimacy of the Dennis Canon in civil court--see point 1. Even if you get a court to find it's not directly binding, it's weighty evidence of intent and course of dealing, and if the court goes the other way, it's essentially disregarding the Supreme Court's interpretation of the First Amendment, inviting overruling by any higher court, or by the Supreme Court itself. And it's a rule affecting property ownership, in which stability is especially important.

I'm not saying it can't be done, mind you--there has, in fact been some confusion in the application of neutral principles under Jones, and some tension between decisions in various states. (I think the linked author reads All Saints v. Campbell, a decision which explicitly turns on its highly unusual facts, too broadly, but I suspect we'll soon see if the South Carolina Supreme Court adopts that broader ruling.) I'm just saying it's like counting on drawing to an inside straight flush--counting on a perfect storm of luck, in effect. And, in fact, as A.S. Haley has recorded, that has in fact been the size of it.

I write this not--I promise!--sarcastically, or mockingly, but because the surprise I saw in the various reactions to the decision troubled me. I get taking a heavy risk because of a perceived moral imperative. What I don't see is the shock when the risk eventuates, and I guess I'm hoping that the principals, if not the commentariat, were properly advised of the risk's magnitude and likelihood.

Saturday, April 20, 2013

Vagaries of Virginia: A Look at a Dissenting View

Because I have a respect for him (though we approach issues with very different commitments and don't often agree), I was waiting to see A.S. Haley's take on the Virginia Supreme Court's decision in Falls Church. Unsurprisingly, I don't agree with his favored bottom line, nor do I agree with his overall analysis. That said, I think it's worth considering some of the specific points he makes in context.

In a sense. we agree on one thing: the Virginia Supreme Court's opinion is severely flawed in its methodology. As I explained last night, I believe that the Court went off the rails at an earlier point than does Haley, in that it found that, based on the law in effect at the time of the adoption by the Episcopal Church of the Dennis Canon, the Dennis Canon was ineffective in creating a trust.

Much of my disagreement with Haley on this case takes place here: If the Virginia Supreme Court has this point right (as Haley's analysis postulates) then, while I still don't buy his argument, it's a stronger one than if the concurring opinion by Justice McClanahan, which I think is indisputably correct, is in fact so--that the Virginia statute, by discriminating against hierarchical churches on the basis of their polity,was unconstitutional at the time the Dennis Canon was adopted.

Assuming that is correct, for the moment (and I really haven't seen a good argument why the Establishment Clause allows a state to disfavor a religious body based on animus toward its polity), then the Virginia Supreme Court should simply have found that TEC availed itself of one of the means of creating a trust set forth by the United States Supreme Court in Jones v. Wolf, that is, "by providing, in the corporate
charter or the constitution of the general church, that the identity of the local church is to be established in some other way, or by providing that the church property is held in trust for the general church and those who remain loyal to it." As the U.S. Supreme Court stated in Jones, as a matter of constitutional imperative, that "the civil courts will be bound to give effect to the result indicated by the parties, provided it is embodied in some legally cognizable form," that should be the end of it. Only the patently unconstitutional discrimination against hierarchical churches embodied in Virginia law prior to the amendment of the statute in 1993 prevented that simple analysis and readily predictable outcome.

But since the Virginia Supreme Court didn't undertake the more appropriate analysis, it posed a question which Haley contends it then went on to answer incorrectly--that is, the discrete question of whether, under Virginia law, the parties' course of dealing can create a constructive trust where the parties had previously created an express trust that was ineffective under Virginia law, and when no subsequent acts (prior to the break giving rise to the present litigation) changed the status quo? Or, as Haley puts it:
Look at the words of the statute that changed Virginia law, quoted above. It begins: “Every conveyance or transfer of real or personal property ...”. If trusts in Virginia stand or fall by the law in effect when they were created (opinion, p. 17), then what conveyance or transfer of The Falls Church property took place after 1993 to give rise to the existence of any trust as described by the Dennis Canon?

The Court cannot have it both ways (but Justice Powell tries to do just that). Either the trust in question arose at a time when it was invalid under Virginia law, or it arose at a time when it was valid, i.e., after 1993. And to arise and be effective as declared by the statute, it had to be part of a conveyance of transfer upon terms of trust executed after that date. If it “arose” out of a course of conduct or dealing, then it does not come within the language of the statute—and so it would remain invalid under Virginia law.
This is actually a fair point, and raises a genuine analytical weakness in the Supreme Court's analysis. If you take the amendment in its most literal reading, than it could reasonably be interpreted to mean that some new conveyance or transfer would be needed to bring a hierarchical church that had tried (and, in the Virginia Supreme Court's analysis) to effectuate a trust prior to the amendment within the amendment's scope. The fact that the result would be patently (almost grotesquely) unconstitutional doesn't really address the Virginia Court's analysis, as the Court doesn't reach that issue.

It's not quite the slam dunk Haley thinks it is, mind you, because if the statute is reasonably read as a remedial statute, seeking to avoid a constitutional problem, and/or to eliminate disparate treatment by religion, the broader reading of it taken by the Virginia Supreme Court is considerably more defensible--that remedial statutes are to be read broadly is an ancient truism of statutory interpretation. By looking at the ongoing course of dealing, the Court, exercising its equitable powers, sought to avoid disparate treatment of like-situated entities. Still, I wouldn't be fair if I didn't acknowledge that Haley had made a very salient critique of the rationale on which the Court based its ruling.

(I am not sure though, from what I have read, that the Falls Church made this argument explicitly; if they didn't than the Court's not addressing it other than in the rather short account of the parties' dealings up to the division point, makes more sense.)

I agree with him that, as this decision is limited to an interpretation of the Virginia law of trusts, it is not susceptible review by the U.S. Supreme Court, and will stand whether the reader finds the opinion,Haley's critique, or my limited defense persuasive.

I do disagree with the rest of Haley's analysis; most especially with this:
ssume for a moment that in 2006 the property was held by The Falls Church as a trustee for the Diocese. Then presumably by declaring itself free of the Diocese, it attempted to make its property free of that trust. And Justice Powell concludes it could not accomplish that step without betraying its fiduciary duty to keep the property available for the use of Diocese, and those loyal to the Diocese.

All right, but what about the relationship of the Diocese to The Falls Church all the time the latter was a member of the former? Was not the Diocese a fiduciary as well, in relation to The Falls Church? Did not The Falls Church rely upon the Diocese and its bishops to uphold the “doctrine, discipline and worship of [the national] Church” as that Church received them from the mother Church of England?

And what happened to that trust? The national Church and its Dioceses breached it in 2003, and breached it further in 2006—well before The Falls Church ever took its vote to disaffiliate in response to those breaches of trust.
Haley asserts that "even though the first trust is not civilly enforceable in the courts, it nonetheless furnished the quid pro quo for the creation of the second. And when that first trust ceased to exist, the Virginia Supreme Court had no justification for continuing to enforce the second trust."

Here, Haley's analysis is in my opinion simply untenable; Jones, again:
The neutral principles method, at least as it has evolved in Georgia, requires a civil court to examine certain religious documents, such as a church constitution, for language of trust in favor of the general church. In undertaking such an examination, a civil court must take special care to scrutinize the document in purely secular terms, and not to rely on religious precepts in determining whether the document indicates that the parties have intended to create a trust. In addition, there may be cases where the deed, the corporate charter, or the constitution of the general church incorporates religious concepts in the provisions relating to the ownership of property. If, in such a case, the interpretation of the instruments of ownership would require the civil court to resolve a religious controversy, then the court must defer to the resolution of the doctrinal issue by the authoritative ecclesiastical body.
The First Amendment "requires that civil courts defer to the resolution of issues of religious doctrine or polity by the highest court of a hierarchical church organization." (Id.) Implicit in Haley's "first trust" theory is precisely the kind of doctrinal scrutiny forbidden by the First Amendment.

Friday, April 19, 2013

The Constitutional Dog that Was Not Allowed to Bark: Decision for the Diocese and TEC in Virginia

For various reasons, I didn't have a chance to address yesterday's decision of the Virginia Supreme Court in Falls Church v. Protestant Episcopal Church in the USA until today. Now, I had sharply criticized the initial opinion of Circuit Judge Randy Bellows, in part because I believed--and still do--that "the Viginia statute, as applied here, eliminates the flexibility relied upon by the Supreme Court in validating neutral principles, and, what is worse, requires the trial court to parse polity carefully (and, I think in a manner that is heavily slanted in favor of legally mandated congregationalism)."

The Virginia Supreme Court avoided that issue by finding that the statute's implicit prohibition of trusts in favor of a diocese or a national church had been legislatively repealed, and that the Falls Church, the Diocese and TEC had created such an implicit trust. While I agree with the court's analysis to the extent that the course of conduct between the parties clearly established a trust relationship, the Supreme Court assumed, as noted by the excellent concurrence by Justice McClanahan, that under the prior statute "any express trusts purportedly created by the Dennis Canon were ineffective in Virginia." (Id. at 36, McClanahan concurring).

As Justice McClanahan noted, though--far more eloquently than my own formulation in 2008--that "the manifest problem with former Code 57-7, as construed and applied to hierarchical churches, was that it treated those churches differently than local congregational churches by allowing only the latter to hold property in trust in Virginia." (Id. at 38) As Justice McClanahan explains, "Virginia's historic animus toward the accumulation of wealth by churches generally and hierarchical churches in particular, was the origin of that disparate statutory treatment." (Id. at 39) As a result, "[s]uch application of former Code 57-7 violated the Establishment Clause of the First Amendment by conferring a religious preference to local congregational churches." (Id.) By doing so, Virginia had itself violated the "fundamental limitation of the Establishment Clause, [that] neither a state nor the Federal Government can pass laws which prefer one religion over another." (Id.) By allowing one form of denomination (congregational) to possess property in a manner barred to another form (hierarchical), the State unlawfully discriminated against hierarchical churches.

Justice McClanahan goes on to note that the statute as applied therefore frustrated the efforts of the Episcopal Church to avail itself of the constitutional right guaranteed in Jones v. Wolf, which held that:
Through appropriate reversionary clauses and trust provisions, religious societies can specify what is to happen to church property in the event of a particular contingency, or what religious body will determine the ownership in the event of a schism or doctrinal controversy.
Because its polity was of a kind legally disadvantaged under Virginia law, the Supreme Court found yesterday, the trust was "ineffective" until the legislature repealed that statute; as Justice McClanahan writes in her frankly unanswerable concurrence, that interpretation was unconstitutional before the repeal, and remains unconstitutional now.

By finding in TEC's favor on the implied trust theory, of course, the Virginia Supreme Court has insulated this finding from further review; the Diocese and TEC are not aggrieved, although they won on a subsidiary legal theory and not on the most plain and simple theory. Ultimately, they will be made whole, as they should be. The exhaustive majority opinion does a very good job of explaining why, even if one did not credit that an express trust was effectively created, the circumstances clearly established a constructive trust.

But all that is (or rather should have been) unnecessary. In Jones, at p. 618, the United States Supreme Court emphasized the minimal burden of establishing a trust:
Under the neutral principles approach, the outcome of a church property dispute is not foreordained. At any time before the dispute erupts, the parties can ensure, if they so desire, that the faction loyal to the hierarchical church will retain the church property. They can modify the deeds or the corporate charter to include a right of reversion or trust in favor of the general church. Alternatively, the constitution of the general church can be made to recite an express trust in favor of the denominational church. The burden involved in taking such steps will be minimal. And the civil courts will be bound to give effect to the result indicated by the parties, provided it is embodied in some legally cognizable form
(emphasis added)

TEC followed that decision to the letter. That should have been an end of the matter, whatever one thinks of the theological issues dividing the parties. The fact that Virginia purported to nullify that action, when the Supreme Court of the United States had held that "the civil courts will be bound to give effect to the result indicated by the parties," choosing one of the forms specified by the High Court, shows that even this opinion did not go far enough in its reasoning, although it ultimately reached the right result. It is a paradigmatic case of T.S. Eliot's dictum that "[t]he last temptation is the greatest treason: To do the right deed for the wrong reason."

Wednesday, April 17, 2013

"A Pretty Shameful Day for Washington"



In the interest of the right to unrestrained access to firearms, and the right to shoot people with anonymity and impunity, the United States Senate filibustered the Manchin-Toomey bispartisan compromise on gun regulation. The law in fact forbade a national registry, of course, but what the hell. Background checks are bad, right? Guns should flow freely across borders, with no limitation.

Because, after all, what's the worst that could happen?

Let me note the Honor Roll of the Republicans who crossed party lines to support the compromise bill:

*Collins (R-Me);
*Kirk (R-Ill);
*McCain (R-Ariz.); and
Toomey (R-Pa).

And the dishonor role, Democrats who crossed party lines to oppose the bill:

Baucus (D-Mont);
Heitkamp (D-ND); and
Pryor (D-Ark.).

Harry Reid voted against on the final tally so that, under the rules of the Senate, he can re-introduce the bill later in the session.

Oh, the assault weapons ban and magazine restrictions failed too, thanks to the bold defenders of the rights to riddle Bambi, varmints or, what teh hey, schoolchildren, with bullets. Because the Second Amendment requires it, right? Just ask noted liberal Antonin Scalia:
nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.” [citations omitted]

It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment ’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.
Moreover, as Justice Scalia's majority opinion explicitly stated, "We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive."

So the Second Amendment can only be preserved by defeating legislation that the Supreme Court majority that overruled 70 years of case law to expand the Second Amendment found did not violate their expanded conception of Second Amendment.

Today was yet another awful example of Mark Twain's dictum that "It could probably be shown by facts and figures that there is no distinctly native American criminal class except Congress."

Tuesday, April 16, 2013

Boston, April 15, 2013



Tell me again
When the victims are singing
And the Laws of Remorse are restored
Tell me again
That you know what I’m thinking
But vengeance belongs to the Lord
Tell me again
When I’m clean and I’m sober
Tell me again
When I’ve seen through the horror
Tell me again
Tell me over and over
Tell me that you love me then
Amen…
Let's hold Martin Richard and his family in our hearts, if we can:
The father of Martin William Richard today said he is trying to both grieve the death of his 8-year-old son, who was killed at the Boston Marathon bombings, and help his wife and daughter recover from injuries they suffered during the terrorist attack on Monday.

“My dear son Martin has died from injuries sustained in the attack on Boston. My wife and daughter are both recovering from serious injuries,’’ Bill Richard said in a statement released this afternoon. “We thank our family and friends, those we know and those we have never met, for their thoughts and prayers. I ask that you continue to pray for my family as we remember Martin.’’
Of course, there is more:
Tell me again
When the day has been ransomed
And the night has no right to begin
Try me again
When the angels are panting
And scratching at the door to come in
Tell me again
When I’m clean and I’m sober
Tell me again
When I’ve seen through the horror
Tell me again
Tell me over and over
Tell me that you need me then
Amen…
Remember the video yesterday. Then, take a moment, and let's think of Krystie Campbell, who was "always right there when you needed her":
As she did every year, Krystle Campbell of Arlington went to Copley Square for the finish of the Boston Marathon, drawn by the euphoria of crowds cheering runners through the final paces of the race.

“She’s been doing it since she was a little girl,” said her grandmother, Lillian Campbell of Somerville. “She didn’t miss a Marathon, watching it at the finish line.”

****

Krystle moved to Arlington about a year ago after helping her grandmother recuperate from an operation. She was 29 and would have turned 30 on May 3, her grandmother said.

“She took care of me for almost two years after I had an operation,” said Lillian, who lives in Somerville. “She moved right into my house with me for two years.

Krystle, she added, “was special. She’s a hard worker and she was always right there if you needed her. All you had to do was call Krystle, and she was there.”

Lillian added that her granddaughter “was one of those people who always have to be doing something for somebody.”
And the third fatality, make room in our thoughts, our prayers, our heart if we can, for the Boston University graduate student, a Chinese national whose family wants to preserve their loved one's privacy; one of ours, though from far away.
Tell me again
When the filth of the butcher
Is washed in the blood of the lamb
Tell me again
When the rest of the culture
Has passed through the Eye of the Camp
Tell me again
When I’m clean and I’m sober
Tell me again
When I’ve seen through the horror
Tell me again
Tell me over and over
Tell me that you love me then
Amen…
Think of these three, all of the injured and maimed, and then--here's the part you can help me with--let's close our hearts to hate. Because these three young people deserve better from us than to have their deaths caused into a cause. No continuing the cycle, let us not madden ourselves with words: [and] damn ourselves because it feels grand to throw oil on the flaming hell of our own temper. Martin, Krystie, the lost student, and all those whose lives have been shattered and mauled by this deserve better than that.

Monday, April 15, 2013

Right Now. Today.

We don't know anything about the explosions in Boston, really. Right now, we don't know who set them (or even if all the incidents were set), let alone by the same people.

We don't know their agenda.

We don't know their names.

We don't know why.

We may never know why, because the "who" will not that give that away and the statements made after we know the "who"--if any--may not tell us very much at all.

We do not, for example, understand the "why" of Oklahoma City.

Do you think, really, that we know the "why" underlying the September 11, 2001 attacks? I don't.

So this is a brief window of innocence, in a way. The killers could be anyone, of any faith, of any ethnicity, race, or political persuasion. When we know the "who", and that is no longer the case, a story will be told.

We will hear, "they hate us for our freedoms," or "fear of our own government, and a burning desire for revenge, or some rambling policy bullcrap that I can't wade through. It could be oppression. After all, often is. It could be the stunningly blasphemous lie that murder is acceptable in God's sight, in accordance with his plan.

In fact, they all kind of assert that, each in his own way. They all pick an evil to slay, a wrong to right. They all pick the biggest dragon, the best cause they can find. The most sympathetic, just cause they can use to justify their burning desire to kill.

They're lying, whoever they are, whatever motive they offer.

They kill because they feel small. Because they want to have an effect, make a splash. Because some idiots will look up to them, others will hate them, many will see them and feel their impact.

They will matter.

Because we have a culture of death. We celebrate the vigilante, the outlaw, the man of violence who, by gun or bomb, makes it all better. By killing. After all, "only a good guy with a gun can stop a bad guy with a gun."

And so we make the weapons a cause, virtually a sacrament. No matter what. No, really.

So when we get a name, and a face, and a story, remember this: It's just a story. The cause may be good or bad, but it's not a cause that leads people to kill the innocent, trying to run a marathon, or get on with a day's work, or eat at a bistro. It's a lack of empathy, an insatiable need to matter, to prove to one's self that they are not dead.

Because, in a very real way, they are. The living don't need blood sacrifices, and neither does God.

Sunday, April 14, 2013

The Gun is Good

To put it with the maximum of charity, which is, in this case, probably uncalled for, this is craziness:
Organizers of an "Honor Your Oath" rally held at the State House Saturday afternoon charged that the 189 House members who voted to repeal the state's "Stand Your Ground" law last month violated their oaths of office and should be impeached.

"Don't fool around with the Second Amendment," warned Jack Kimball, chairman of Granite State Patriots Liberty PAC, which hosted the event.

"We are now at a tipping point in our country," he said. "If we don't take action and save our Republic, it won't exist anymore.

"The time for timidity is over. The time for action is now."

The flashpoint that unified the crowd was the March 27 vote in the House for House Bill 135, which would repeal the so-called "Stand your ground" law the Legislature passed just last year. The repeal bill passed 189-184.

State Rep. John Hikel, R-Goffstown, told the crowd of about 300 he has filed a redress-of-grievance complaint against his 189 fellow lawmakers who voted for House Bill 135, charging them with "breach of oath of office" and "conspiracy against rights."

Hikel said it's not a partisan issue. "I want everybody in here to respect the Constitution and respect the people that voted them into office," he said.

Hikel said he also filed his complaint with the U.S. Attorney's Office.

State Rep. Daniel Itse, R-Fremont, urged those in attendance to sign the petitions for redress of grievance against those who voted for the repeal bill, which is currently in the Senate Judiciary Committee.

Itse said the measure - which he labeled "Run and Hide" - is unconstitutional. "Therefore, we, the Legislature, have no legitimate power to require you to surrender your right of self-defense."

Organizers said the event, which happened to fall on the birthdate of Thomas Jefferson, was not a "gun rally."

But that didn't stop 11-year-old Hunter Cogswell of Concord from bringing an AR-15 and a big white flag with black lettering: "Come and Take It."

The boy said he was there to "stand up for gun rights."
Beyond the wild, incalculable imbecility of an eleven year old prancing around with an automatic weapon as a political gesture, the real insanity is that of the elders. The notion that a legislator is guilty of criminal conduct through his or her vote to repeal a statute that is two years old, and to revert to the pre-existing law, basically criminalizes any dispute over a vote that any other cretin in or out of the Legislature disagrees with. As summarized in a recent opinion letter from the Attorney General of New Hampshire, the New Hampshire Constitution has an explicit provision--an analog to the federal Constitution's "Speech and Debate" Clause, which is designed to, in the words of the New Hampshire Supreme Court, afford "wide freedom of speech, debate and deliberation without intimidation or threats." As the Court explained:
The legislature’s right to free deliberation and debate is protected by Part I, Article 30 of the New Hampshire Constitution, the Speech and Debate Clause. This clause provides: "The freedom of deliberation, speech, and debate, in either house of the legislature, is so essential to the rights of the people, that it cannot be the foundation of any action, complaint, or prosecution, in any other court or place whatsoever." N.H. CONST. pt. I, art. 30.

Part I, Article 30 has been part of the New Hampshire Constitution since 1784. See Keefe v. Roberts, 116 N.H. 195, 198 (1976). New Hampshire was one of the first States "to preserve the principle that the legislature must be free to both speak and act without fear of criminal or civil liability." Id.

New Hampshire’s Speech and Debate Clause "is the equivalent of the speech or debate clause, article I, section 6 of the United States Constitution." Id. Both the State and federal clauses appear to have emanated from the English Bill of Rights of 1689. See Holmes v. Farmer, 475 A.2d 976, 981 (R.I. 1984). "The English Bill of Rights was established to ensure that the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament." Id. (quotation omitted).

The framers of the Federal Constitution recognized that such a clause was "indispensably necessary" to enable the legislative branch to fulfill its constitutional duties. Id. (quotation omitted). The privileges secured by the Speech and Debate Clause are intended not to protect legislators "against prosecutions for their own benefit, but to support the rights of the people, by enabling their representatives to execute the functions of their office, without fear of prosecutions, civil or criminal." Coffin v. Coffin, 4 Mass. 1, 27 (1808) (interpreting Massachusetts’ Speech and Debate clause, which is nearly identical to New Hampshire’s).

"In the American governmental structure the clause serves the . . . function of reinforcing the separation of powers so deliberately established by the Founders." United States v. Johnson, 383 U.S. 169, 178 (1966). "[T]he central role of the . . . Clause [is] to prevent intimidation of legislators by the Executive and accountability before a possibly hostile judiciary." Gravel v. United States, 408 U.S. 606, 617 (1972). The clause "was designed neither to assure fair trials nor to avoid coercion. Rather, its purpose was to preserve the constitutional structure of separate, coequal, and independent branches of government." United States v. Helstoski, 442 U.S. 477, 491 (1979). "The English and American history of the privilege suggests that any lesser standard would risk intrusion by the Executive and the Judiciary into the sphere of protected legislative activities." Id. The clause "protect[s] the integrity of the legislative process by insuring the independence of individual legislators." Id. at 493 (quotation omitted). It assures that the legislature, as a co-equal branch of government, will have "wide freedom of speech, debate and deliberation without intimidation or threats." Gravel, 408 U.S. at 616. "[T]hat the legislators can carry out their duties without being questioned in any other place allows the free flow of debate among legislators and the maximization of an effective and open exchange of ideas." Holmes, 475 A.2d at 982 (quotation omitted).
But for the NRA and its puppets, the only rights that matter are gun rights. All rights, even those most basic to democracy, must fall to the grand imperative of more guns, and more protections for gun rights.

After all, who needs a free discussion and a free vote when Second Amendment remedies are at hand?

Friday, April 12, 2013

Phineas Redux?



So I have always loved Anthony Trollope's Palliser novels, especially Phineas Finn and, even more so, Phineas Redux. But I was never happy with the way Trollope ended the series, especially with Phineas's gradual fade to the background; the character's potential did not seem to me to be fully used, just like that of his wife, the once notorious "Madame Max." Here are two rebels--the Irish maverick, and the Jewish adventuress-with-principles--both clearly loved by Trollope, and both capable of mischief and shaking up the stuffy Palliser environs more than any characters left standing at the end of the series. What next?

A few years ago, between scholarly projects, an idea for a follow up hit me, and I wrote up a few chapters. I just stumbled on them again, and reread them, and, well, I think it might do.

So a 2013 sequel to an 1873 novel? I have to admit I'd like to try. Hopefully, the idea isn't so blasphemous as to get me stripped of my BA in English; I mean, hopefully more Jean Rhys and less Alexandra Ripley, but as long as I don't bore myself...

Not that the world has been clamoring for the new Pallisers installment, but that's just because they don't know they want it...

(Clip above stars Donal McCann as Phineas and Barbara Murray as Marie (Madame Max) Goesler at the end of Phineas Redux.)

Wednesday, April 10, 2013

William Law's Day

Today we celebrate William Law , mystic and non-juror,
who understood the benefits of intercession better than most:
If you were also to form your prayer or intercession at that time, to the greatest degree of contrariety to that temper which you were then in, it would be an excellent means of raising your heart to the greatest state of perfection.
As for instance, when at any time you find in your heart motions of envy towards any person, whether on account of his riches, power, reputation, learning, or advancement, if you should immediately betake yourself at that time to your prayers, and pray to God to bless. and prosper him in that very thing which raised your envy; if you should express and repeat your petitions in the strongest terms, beseeching God to grant him all the happiness from the enjoyment of it, that can possibly be received; you would soon find it to be the best antidote in the world, to expel the venom of that poisonous passion.
This would be such a triumph over yourself, would so humble and reduce your heart into obedience and order, that the devil would even be afraid of tempting you again in the same manner, when he saw the temptation turned into so great a means of amending and reforming the state of your heart.
Again; if in any little difference, or misunderstandings that you happened to have at any time, with a relation, a neighbour, or any one else, you should then pray for them in a more extraordinary manner than you ever did before; beseeching God to give them every grace, and blessing, and happiness, you can think of; you would have taken the speediest method that can be, of reconciling all differences, and clearing up all misunderstandings. You would then think nothing too great to be forgiven; stay for no condescensions, need no mediation of a third person, but be glad to testify your love and good-will to him who had so high a place in your secret prayers.
This would be the mighty power of such Christian devotion: it would remove all peevish passions, soften your heart into the most tender condescensions, and be the best arbitrator of all differences that happened betwixt you and any of your acquaintance.
The greatest resentments amongst friends and neighbours, most often arise from poor punctilios and little mistakes in conduct. A certain sign that their friendship is merely human, not founded upon religious considerations, or supported by such a course of mutual prayer for one another as the first Christians used.
For such devotion must necessarily either destroy such tempers, or be itself destroyed by them: you cannot possibly have any ill temper, or show any unkind behaviour to a man, for whose welfare you are so much concerned, as to be his advocate with God in private.
His devotional work linked above, A Serious Call to a Devout and Holy Life, is filled with such practical, good sense advice, and well worth the reader's time.

Highly recommended.

Monday, April 8, 2013

Maggie Eclat

Edited for Clarity
So, I'm really not sure what to write about the late Margaret Thatcher. I'm certainly not a fan; during my first trip to the UK, in which my family and I went on a bus tour, I heard an awful lot about the harms of Thatcherism, and, in addition to reading a fair amount of UK journalism and commentary on her by writers like John Mortimer, I immersed myself in Hugo Young's The Iron Lady (1989), a critical biography, which I found to be compelling and fair.

So when I saw that Young's final take, written two weeks before his own death in 2003, was published today, I was interested. Young gives Thatcher due credit for her achievements, but is harsh about her legacy:
Thatcher left a dark legacy that, like her successes, has still not disappeared behind the historical horizon. Three aspects of it never completely leave my head.

The first is what changed in the temper of Britain and the British. What happened at the hands of this woman's indifference to sentiment and good sense in the early 1980s brought unnecessary calamity to the lives of several million people who lost their jobs. It led to riots that nobody needed. More insidiously, it fathered a mood of tolerated harshness. Materialistic individualism was blessed as a virtue, the driver of national success. Everything was justified as long as it made money – and this, too, is still with us.

Thatcherism failed to destroy the welfare state. The lady was too shrewd to try that, and barely succeeded in reducing the share of the national income taken by the public sector. But the sense of community evaporated. There turned out to be no such thing as society, at least in the sense we used to understand it. Whether pushing each other off the road, barging past social rivals, beating up rival soccer fans, or idolising wealth as the only measure of virtue, Brits became more unpleasant to be with. This regrettable transformation was blessed by a leader who probably did not know it was happening because she didn't care if it happened or not. But it did, and the consequences seem impossible to reverse.

Second, it's now easier to see the scale of the setback she inflicted on Britain's idea of its own future. Nations need to know the big picture of where they belong and, coinciding with the Thatcher appearance at the top, clarity had apparently broken through the clouds of historic ambivalence.

Heath took us into Europe, and a referendum in spring 1975 confirmed national approval for the move. ....

But on the subject of Europe, Thatcher became a contradictory figure. She led Britain further into Europe, while talking us further out. Endeavouring to persuade the British into an attitude of hostility to the group with which she spent 11 years deepening their connection must take a high place in any catalogue of anti-statesmanship. This, too, we still live with.

One also can't forget what happened to the agency that made Thatcher world‑famous: the Conservative party, of which she seemed such an improbable leader. Without it, she would have been nothing. It chose her in a fit of desperation, hats and all – though it quite liked the hats. It got over a deep, instinctive hostility to women at the top of anything, and put her there. Yet her long-term effect seems to have been to destroy it. The party she led three times to electoral triumph became unelectable for a generation.
Now, in retrospect, with the EU in shaky condition, and the Conservatives in power again (albeit as part of a coalition) these last two prongs are less knockout punches than Young might have thought them at the time he was writing. They're defensible, mind you; the Conservative Party did struggle with a reputation as the "nasty party" until Cameron's 2010 election, and, in 2013, is still depicted as such; even the Telegraph (sometimes known as the "Torygraph") is lamenting "sinking" membership, which "now stands at between 130,000 and 170,000, down from around 250,000 when Mr Cameron became leader, and three million in the post-war period. MPs [Peter Osborne] spoke to [for a February 6, 2013 article]... believe they may have lost 10 per cent or so of their remaining members this week alone."

As to Europe, the jury is still out; Britain's distance from the Euro may protect it against contagion, but its own economy under Tory austerity policies reminiscent of Thatcherism has left the UK "tottering on the brink of a triple-dip recession (although, in fairness, not a particularly deep one.)" Even the IMF, hardly a Keynesian think tank, has warned the Tory government of the dangers of continued austerity, and one of the three major credit agencies has downgraded the UK's credit, while another, Fitch has put[] the UK economy on negative watch, the first step to another credit rating downgrade." (The third, S & P, has, like Fitch, not downgraded but has kept the economy on "negative watch.")

The third one, though, seems to me the fairest knock on Thatcher, who famously said "society as such does not exist except as a concept. Society is made up of people. It is people who have duties and beliefs and resolve. It is people who get things done." If I were to criticize any one strain in her thought it would be that, in my opinion, she under-estimated the importance of the common good, reacting to her dislike of state paternalism with an abstract clarity the cutting edge of which fell on real people all too often.

Thatcher's misjudgments regarding the IRA, which her hardline tactics is thought to have revived, the ANC and South African apartheid government (she dismissed the former as "a typical terrorist organisation" and opposed sanctions on the latter) and other provocative acts and speeches did neither her nor Great Britain credit. And let's not forget her betrayal as Prime Minister of her early, progressive record on GLBT rights.

And yet. Young makes a point in her favor that I think is very true:
I think by far her greatest virtue, in retrospect, is how little she cared if people liked her. She wanted to win, but did not put much faith in the quick smile. She needed followers, as long as they went in her frequently unpopular directions. This is a political style, an aesthetic even, that has disappeared from view. The machinery of modern political management – polls, consulting, focus groups – is deployed mainly to discover what will make a party and politician better liked, or worse, disliked. Though the Thatcher years could also be called the Saatchi years, reaching a new level of presentational sophistication in the annals of British politics, they weren't about getting the leader liked. Respected, viewed with awe, a conviction politician, but if liking came into it, that was an accident.

This is a style whose absence is much missed.
It's possible that Thatcher's medicine was necessary for Britain--Young himself stated that "Britain was battered out of the somnolent conservatism, across a wide front of economic policies and priorities, that had held back progress and, arguably, prosperity. This is what we mean by the Thatcher revolution, imposing on Britain, for better or for worse, some of the liberalisation that the major continental economies know, 20 years later, they still need," and wrote that "I think on balance, it was for the better, and so, plainly did Thatcher's chief successor, Tony Blair." I don't agree, but then I wasn't a Briton in those years. It's entirely possible that in noting the bitterness of the medicine, I am mistaking what was needful for the poison it seemed to be from a distance.

And, credit where due, she could rock a Christopher Fry reference:



May she rest in peace.

Sunday, April 7, 2013

Dark Sarcasm re the Classroom



For most of my life, I wanted to be a law professor. The scholarly life has always been one which attracts me, but the possibility of combining that with some civil rights/civil liberties advocacy, well, that fused my intellectual and practical aspirations.

Except, of course, for the bit about teaching part of it not happening. Bit of a drawback, that.

I had thought of academia outside of law, too, though. In my last year of college, one of my best professors took me out to lunch and urged me to consider pursuing a Ph. D in English Literature, and I was sorely tempted. I told him I'd been accepted to law school, and he scoffed, saying that law was a proper career for a pedant.

A quarter of a century later, I can see that there's some truth in that. But there's also some truth in my reply, that a career in law can offer opportunities to oppose injustice, to help people to serve the common good. I've known many attorneys who have done just that, and even in my first year of law school, I met a remarkable troika of lawyers who did just that--William J. Brennan, Thurgood Marshall, and Arthur Chaskalson, who spent some time at the law school in my first year, and who, by great good fortune, I was seated with at several events and got to know a little bit. I have found much rewarding in in practicing law.

That said, the two careers I contemplated, and the one which I have lived (legal prctitioner and academic manqué) have one thing in common: They all appear to be headed for the endangered species list. Brian Tamanaha and Paul Campos are all over the high (and non-dischargeable) debt levels and increasingly dire career prospects facing law graduates (desperate times, really), and the blowback has already begun to squeeze the schools. It's not looking good out there for lawyers, or for law professors down the road.

On the other hand, job prospects in academia for humanities students? Not so much. And Part 2 (with a reading list, this time!). And in the four years since? Still awful, courtesy of the Chronicle of Higher Ed:
Research on adjunct working conditions paints a picture of inequality between them and their tenure-track counterparts. A 2010 survey of non-tenure-track faculty members by the Coalition on the Academic Workforce showed low median compensation rates for adjunct faculty, at $2,700 per three-credit course, with little, if any, compensation based on credentials and minimal support for work or professional development outside the classroom. (At four courses per semester, that's $21,600 annually, compared to starting tenure-track salaries that average $66,000, according to data from the American Association of University Professors.)
But adjunct faculty now make up the majority of the higher education work force. As recently as 1969, 78 percent of instructional staff comprised tenured or tenure-track professors, with adjunct faculty making up the rest, according to information from the Pullias Center for Higher Education at the University of Southern California. By 2009, the figures had nearly flipped, with a third of faculty tenured or on the tenure track and two-thirds ineligible for tenure. Of those non-tenure-track positions, just 19 percent were full-time.
****
While adjuncts have been common at community colleges since the enrollment boom in the 1960s-70s, their numbers have surged at four-year undergraduate institutions during the last decade. Part of that is due to increased hiring of full-time, non-tenure-track faculty (by 2003, a majority of full-time hires were off the tenure track, according to the Delphi Project), which can be a good deal for some professors who want to focus on teaching, said Ronald Ehrenberg, director of the Cornell Higher Education Research Institute at Cornell University. But conditions for adjuncts trying to “eke out a living” by teaching courses here and there – a phenomenon more commonly seen in urban areas than rural – are far worse, he said. “I feel for them.”
Economics -- namely decreasing state and federal funding -- and changing institutional priorities are driving the trend away from tenure-track hiring, as universities devote more resources to research (internal spending on research and development increased from 11 percent to 20 percent of private research university budgets from 1970 to 2000) and student services, and away from instruction and other costs, Ehrenberg said. According to his research, some student services are linked to higher retention rates, while the benefit of proximity to world-class researchers is an “open question.”
As Rebecca Schulman rather pragmatically points out:
No, you will not get a job—not because, like Kafka’s mouse, you went in the “wrong” direction, but because today’s academic job market is a “market” in the sense that one stall selling fiddlehead ferns in the middle of a strip mall is a “farmer’s market.” In the place of actual jobs are adjunct positions: benefit-free, office-free academic servitude in which you will earn $18,000 a year for the rest of your life.
But how did this happen? Colleges and universities have more students than ever—and charge higher tuition than ever—so whither the humanities professorship amid all the resort-like luxury dormitories and gleaming student centers? Is the humanities professorship extinct because at this very second, thousands of parents of wide-eyed college freshmen are discouraging them from taking literature, philosophy, foreign languages or history (the disciplines that comprised a college education in its entirety for thousands of years, but whatever), even though quite unlike humanities Ph.D.s, humanities B.A. degrees are actually among the most hirable? Or is it, as Rosenbaum and others have suggested, that the overproduction of obtuse torrents of jargon has caused my profession to hasten its own irrelevance?

Who cares? None of this will be sorted out in the five to 10 years it takes you to get a Ph.D. So don’t. Sure, you may be drawn to the advanced study of literature like my late grandmother to her three daily packs of Kools—but in the 1950s, smokers didn’t know any better. In 2005 when I began my own Ph.D., I should have known better, but I didn’t. Now that you know better, will you listen? Or will you think that somehow you can beat odds that would be ludicrous in any other context?
So the question arises, what is happening in higher education? Now, far be it from me to praise David Brooks, but I think here he is in touch with the zeitgeist:
Are universities mostly sorting devices to separate smart and hard-working high school students from their less-able fellows so that employers can more easily identify them? Are universities factories for the dissemination of job skills? Are universities mostly boot camps for adulthood, where young people learn how to drink moderately, fornicate meaningfully and hand things in on time?

My own stab at an answer would be that universities are places where young people acquire two sorts of knowledge, what the philosopher Michael Oakeshott called technical knowledge and practical knowledge. Technical knowledge is the sort of knowledge you need to understand a task — the statistical knowledge you need to understand what market researchers do, the biological knowledge you need to grasp the basics of what nurses do.

Technical knowledge is like the recipes in a cookbook. It is formulas telling you roughly what is to be done. It is reducible to rules and directions. It’s the sort of knowledge that can be captured in lectures and bullet points and memorized by rote....

Practical knowledge is not about what you do, but how you do it. It is the wisdom a great chef possesses that cannot be found in recipe books. Practical knowledge is not the sort of knowledge that can be taught and memorized; it can only be imparted and absorbed. It is not reducible to rules; it only exists in practice.
Guess what doesn't even make the cut in Brooks's schema? You guessed it, what Schulman describes as "the disciplines that comprised a college education in its entirety for thousands of years," or, as Werner Jaeger, encapsulating the education of the ancient Greeks would put it, padeia, "the shaping of Greek character through a union of civilization, tradition, literature, and philosophy." (See Clara Claiborne Park's more recent (1982) appraisal and critique of Jaeger's magnum opus.) The point of education is education, not merely equipping the student for her or his role in the market economy; that kind of technical equipping vision of education smacks a little bit of the feared "Huxlean Nightmare" predicted by Collins and Skover in the 1990s. Up through my own law school years, most of the academics I met believed, however wryly, in the dream of an expanded base of education until it became effectively universal; education as finding and unlocking the potentialities of each student, as well as equipping them professionally. With enrollment at an all-time high, universities with unprecedented resources and means of disseminating and sharing information, they nonetheless seem to be by degrees, dwindling into an extended orientation course.

Thursday, April 4, 2013

Niggle at Lewis

(Edited and Revised)
I want to qualify in two aspects my sincere admiration for Alister McGrath's excellent biography--they are not fundamental qualifications, but niggling afterthoughts regarding a book I admire (hence my Tolkien homage)

The first is that, while McGrath excels at presenting Lewis's thought (he's especially good on the Narnia books, the mythological resonance, and medieval roots of which he excavates in an illuminating way), his book lacks some of the compelling evocation of person and place of A.N. Wilson's C.S. Lewis: A Biography (1990). I'm not talking about matters that McGrath and Wilson disagree about; I mean that Wilson presents a more textured, rich, and full account of the relationships Lewis enjoyed with J.R.R. Tolkien, the Inklings, and, especially, Lewis's brother Warnie and Lewis's own wife, Helen Joy Davidman. It's a shame, because McGrath sheds additional light on many of these relationships--he's especially good with respect to Lewis's role as the "midwife" to Tolkien's great work, and does some useful detective work unearthing the path Lewis and Davidman took to the altar (particularly from her side, which is not often explored in Lewis biographies). But because McGrath focuses so heavily on the work, he spends much less time on the man, and the detail that can create immediacy is sometimes skimped. For this reason alone, I would recommend reading Wilson alongside McGrath--he excels in the various areas McGrath treats as secondary, and McGrath and he complement each other quite well.

The second niggle again involves the Wilson-McGrath comparison. It's this: in pages 249-259 of McGrath's book, he addresses the famous debate between Lewis and Elizabeth Anscombe in 1948, and the question of its role in leading Lewis to move from authoring Christian apologetics to a more mythic, imaginative approach to his depicting Christianity. As McGrath writes:
Some of Lewis's biographers, primarily A.N. Wilson, have seen this incident as signaling, perhaps even causing, a major shift in Lewis's outlook. Having been defeated in argument, they contend, Lewis lost confidence in the rational basis of his faith, and abandoned his role as a leading apologist. They claim that his shift to writing fictional works--such as the Chronicles of Narnia--reflects a growing realization that rational argument cannot support the Christian faith.

However, the substantial body of written evidence concerning this exchange points to a quite different conclusion. A chastised Lewis recognized the weakness of one specific argument he deployed (a little hastily, it must be said), and worked to improve it. . . Lewis appears to have been taken aback at having the weakness of his argument demonstrated so publicly, and expressed unease about the incident to some of his closer friends. Yet Lewis's embarrassment concerned the somewhat public nature of [Anscombe's] refinement [of Lewis's argument], not the intellectual process itself. The positive and beneficial outcome of Anscombe's intervention is clearly evident in the revised version of Lewis's argument.
(McGrath, pp. 253-254) (McGrath later points out that the revision was published in 1960, 12 years after the debate, so the notion that this was a routine intellectual exchange with a correction issuing in ordinary course is a bit strained to me.)

Now, with great respect, I think McGrath here is engaged in an exaggerated (with one exception, which I'll get to) and uncharitable reading of Wilson's account of the debate, which is, in fact, not very different from his own. Wilson does state that the "confrontation with Elizabeth Anscombe was to have no effect whatsoever on Lewis's popularity as a Christian writer. It was the greatest single factor which drove him into the form of literature for which he is today most popular: children's stories." (Wilson, 211). However, like McGrath, Wilson regards the issue dividing Anscombe and Lewis (he describes it somewhat differently, but they agree that in part the problem was that Lewis was not addressing his critique of modern philosophy with a shared frame of reference or even shared meanings of terms (Wilson, 212; McGrath, 253-254)) as not fundamental to Lewis's ultimate commitments. Wilson quotes Lewis as writing that "his argument for the existence of God had been demolished," but very quickly adds that "from a purely academic view, this hyperbole makes no sense." (Wilson, 213-214) He adds "[a]ll that had happened, humiliating as it had been at the time, was that Lewis had been shown to have no competence to debate with professional philosopher on her own terms." (Wilson, 214)

Wilson then ties the turn from apologetics to his "great conversation" (leading to Lewis's conversion) with Tolkien and Hugo Dyson, reaffirming their insight then that "make-beleive was really another way about talking about the reality of things [that] the brutal and cerebral way in which grown-ups tried to come to conclusions about the world was not the only way; [that] he could explore the way of [George MacDonald's] Phantastes." (Id.) Wilson writes that "Lewis never attempted to write another work of Christian apologetics after Miracles. Even though this book and the argumentative books which precede it--The Problem With Pain, Mere Christianity--remain so vastly popular. . . he came to feel that their method and manner were spurious. There must be another way further up and further in." (Wilson, 215)

McGrath rejects this contention as a claim that Lewis was "retreating into some kind of non rational fideism or reason-free fantasy as a result of this encounter." (McGrath 254) However, a few pages later, McGrath approvingly cites Basil Mitchell as saying that "Lewis came to believe that he was not sufficiently informed about contemporary philosophical debates--Anscombe was an expert on Wittgenstein--and decided this was now best left to experts. He would focus on what he knew best." (McGrath at 257-258) McGrath also points out that Lewis's correspondence reflects two themes regarding Lewis's belief that "his moment as an apologist had passed,' that is, "first, Lewis's feeling that new issues had arisen, which he was not best placed to engage and second, Lewis's belief that he had peaked in his abilities as an apologist." (McGrath, 258-259)

McGrath adds, "[t]here is no doubt that Anscombe helped Lewis to reach this conclusion," citing his recommendation of Anscombe as a his "top pick" as a speaker for the Socratic Club: "Having obliterated me as an Apologist, ought she not to succeed me?" (McGrath 259; emphasis in original) McGrath further writes:
It is striking how few of his writings of this later period of his life deal specifically with apologetic themes, if understood in terms of the explicit rational defense of the Christian faith. In a letter of September 1955, declining the invitation of the American evangelical leader Carl F.H. Henry (1913-2000) to write some apologetic pieces, Lewis explained that while he had done what he could "in the way of frontal attacks," he now felt "quite sure" those days were over. He now preferred more indirect approaches to apologetics, such as those which appealed to "fiction and symbol."
(McGrath, 259) McGrath concludes that "[i]f Anscombe raised doubts in Lewis's mind about his apologetic approach, these concerned its medium, rather than its content." (McGrath,260)

Thus far, there is very little difference between Wilson and McGrath in their depictions of the Socratic Club debate between Lewis and Anscombe. McGrath seems to be primarily to assume that Wilson (then an atheist) draws the deduction that Lewis's faith was revealed as non-rational or even irrational. With all respect to a superb thinker, I believe McGrath misreads Wilson mightily on this point. Both attribute Lewis's embarrassment to the revelation that he was not sufficiently skilled at philosophical dialectic to (in Wilson's terms) debate a professional philosopher on her own terms. McGrath downplays the extent of Lewis's feelings of humiliation (Wilson's quotes justify his statement, though, in my opinion, and even McGrath quotes Lewis as writing that Anscombe had "obliterated" him as an apologist).

So, what gives?

Two things, I think. First, McGrath believes--quite rightly, I think--that Lewis did not drift from a firm belief that (to borrow a phrase from the Cambridge Platonist Whichcote, "spiritual is most rational." I just don't believe that Wilson held the opposite view; rather, like McGrath himself, he concluded that Lewis lost confidence in his persuasive power as a logician using dialectic--remembering that (as McGrath agrees) Lewis's own conversion was not through argument but through an appeal to he imagination. Wilson sees a turn to Lewis's evocation of what ultimately drew him "further up and further in," his own feel for the sharp, insatiable longing he called Joy. Wilson repeatedly contrasts Lewis's best writing with the "police court solicitor" style of argumentation Lewis learned from his father; McGrath usefully contrasts near the end of his book the "somewhat superficial engagement with suffering in The Problem With Pain" with "the more mature, engaged, and above all wise account found in A Grief Observed." (McGrath at 345)

The more substantive disagreement is McGrath is leery--very much so--of Wilson's suggestion that Anscombe "all sorts of deeply seated fears in Lewis, not least his fear of women." (Wilson, 214) Wilson suggests that Lewis felt "cut down to size" like a little boy who "was being degraded and shaken by a figure who, in his imagination, took on witch-like dimensions," McGrath resists this. However, both Wilson and McGrath cite witnesses who described Anscombe as a "bully" (McGrath at 256, Wilson at 213) McGrath suggests that Lewis's lack of knowledge and inhibition by his own code of manners hindered his defense (which he nonetheless also declines to call a defeat). (McGrath at 256) He deplores Wilson's description of Lewis "being stung back into childhood by his defeat at the hands of Elizabeth Anscombe," let alone that it played a role in the incubation of Narnia. But I think he misconceives Wilson's meaning here; Wilson views this defeat (Lewis called it an obliteration; who am I to dispute him?) as leading Lewis to find a better mode of expression for his passionate faith in the truth, factual, emotional, and spiritual, of Christianity. I don't actually think that McGrath fundamentally disagrees with him on that.

He may, of course, be correct that Wilson has no proof for his suggestion that the White Witch in the Narnia books is modeled on Anscombe. But it is, as McGrath concedes, an amusing notion. It also has the advantage of being very Lewisian.

Monday, April 1, 2013

CSL Redux: A Tale of Two Biographers

I was impelled to buy the book under review after reading A.N. Wilson's remarkably magnanimous review of Alister McGrath's new biography of C.S. Lewis. Wilson, who wrote his biography of C.S. Lewis right around the time of his loss of faith, and 20 years prior to his re-conversion to Christianity, found his highly readable account fairly stringently assailed by Lewis devotees. (For what it's worth, I think the Wilson biography stacks up quite well; fair, accurate, and sympathetic to Lewis while maintaining a proper level of distance.)

So, he might have been a little chary of McGrath's book, the work of an evangelical Anglican, and an important one. But no:
There have been plenty of biographies of Lewis—I once wrote one myself—but I do not think there has been a better one than Alister McGrath’s. He is a punctilious and enthusiastic reader of all Lewis’s work—the children’s stories, the science fiction, the Christian apologetics, and the excellent literary criticism and literary history. He is from Northern Ireland, as Lewis was himself, and he is especially astute about drawing out the essentially Northern Irish qualities of this very odd man. And he is sympathetic to the real oddness of his story.. . .

Where McGrath is so good is in sorting out the truth of this story. Lewis remembered, shortly after his conversation with Tolkien, being driven in the sidecar of his brother’s motorbike to an outdoor zoo—Whipsnade. In the course of this journey, he decided he believed in the Incarnation of Christ. He remembered his exultation as the two brothers walked together among bluebells. But, McGrath, points out, it was September—when bluebells are not in flower! McGrath cunningly shows us that the moment of epiphany must in fact have come two years later, when Lewis went to the zoo with his lover, or former lover Mrs. Moore and her daughter Maureen.

Mrs. Moore is the most understandable omission from Lewis’s autobiography. (Another being Lewis’s obsession with sadism; he nicknamed himself Philomastix, or Lover of the Whip). McGrath deals with the whole story remarkably fairly. Lewis trained as an officer to fight in the First World War, and shared a room with a man called Paddy Moore. The two boys agreed that if either were killed in the war, the other would look after the dead one’s parent. Moore was killed. Lewis had already begun a relationship with Janey Moore, with whom he subsequently lived for the rest of his life. When I wrote my life of Lewis, I speculated, as others have done, that they must have been lovers—though this was always hotly contested in those days by some of Lewis’s more pious admirers. When my book was published, Maureen, Mrs. Moore’s daughter, smilingly told me she was glad I had realized what she had been trying to tell me during our conversations about her mother.
....

Until reading McGrath, I had never before been so struck by the fact that Lewis was a poet manqué. Of course I had known this—it is the most obvious fact about Lewis the writer. His earliest printed works were poems, but they were no good. He never quite recognized this fact, and the people he truly hated tended to be poets. One of his first pupils at Magdalen was dear old John Betjeman, later poet laureate, but Lewis the sadist treated him abominably. Lewis loathed T.S. Eliot and could not see any virtue in Eliot’s work, even after he became a Christian. Lewis once had a fight in a pub with the poet Roy Campbell. To this degree, he was the classic case (we have all met them in university life) of the secondary talent who could not endure primary talents. Brilliant as an exponent of the virtues in Spenser, Dante, Chaucer, Lewis could not write his own poetry.

Yet toward Tolkien he remained wonderfully generous. Without Lewis’s prompting, there would have been no Lord of the Rings. The only new bit in McGrath’s book that made me cry was a letter he has unearthed in which Lewis proposed Tolkien for the Nobel Prize for Literature. By then the friends were more or less estranged. Tolkien disliked Lewis’s Narnia books intensely and he resented his friend’s marriage to Mrs. Davidson. Yet Lewis never returned Tolkien’s rancor. The cooling of friendship is as sad as the death of other kinds of love, and McGrath conveys this beautifully. His book evokes with aching honesty that vanished male world of heavy-smoking, heavy-drinking Oxford, the world in which emotions are not investigated, not understood, and left at home with the usually unhappy womenfolk
McGrath's book is as good as Wilson says--although a less compelling read than Wilson's own, greatly helped by Wilson's novelist's skill as a storyteller. It's a first rate biography of a figure whose complexity and depth not merely of thought, but of feeling, do not always, as I have previously argued, receive the respect he deserves, nor does the breadth of his view of orthodoxy.

I can say that Alister McGrath, like A.N. Wilson before him, does justice to Lewis. Indeed, he does finer and better justice than Wilson could; as Wilson acknowledges, McGrath's use of previously unavailable original sources, his precision in reckoning the chronology, corrects Wilson's own book, and illuminates places in Lewis's landscape that Wilson missed. I admire Wilson's magnanimity in admitting this, and McGrath's achievement. It is no small thing to write a good biography of a figure like Lewis; to write a great one, as I believe McGrath has, is extraordinary.

Here's an introduction to McGrath's biography, by the man himself: