Constitutional CYA

Thursday, 04-23-2020

 

CYA, short for Covering Your Anatomy, is the strategy of choosing one’s course of action in such a way that if it goes wrong, someone else gets the blame.  Dealing with the problem at hand may take second place.

We all know that CYA can affect governmental policy.  What’s not so often noticed is that it can also affect the Constitutional balance of power.

I used to think CYA worked only against the balance of power.  For example, although Congress, not the courts, should make the laws, in some cases legislators are only too happy to let the judiciary set policy, just so they won’t get blamed for it.  This is just the opposite of what the Framers expected, for they thought that each branch would jealously guard its powers.

But I was wrong.  Ironically, CYA can work either for or against the balance of power.

For example, some of the current president’s critics have accused him of following a CYA policy by allowing state governors to decide for themselves when to roll back coronavirus restrictions in order to get their economies moving again.  Whether or not his motive is CYA, in this case it works in favor of the balance of power, because under the Constitution, that really is a state prerogative.

On the other hand, some of the critics of state governors have used them of following a CYA policy by speaking as though the response to the coronavirus depends entirely on federal decisions.  Whether or not their motive is CYA, in this case it works against the balance of power, because it encourages them to shirk their own constitutional responsibilities.

Irony doesn’t usually prompt belly laughs, but isn’t it funny how things work?
 

Fear and Forbearance

Monday, 04-20-2020

 

At the beginning, it was said that since it was impossible to prevent all infections, we had to “flatten the curve” of the coronavirus so that the caseload stretched out and hospitals would not be overwhelmed.  Now that the curve has flattened, we hear in some quarters that the country should not go back to work until there are no cases at all, an absurd standard never before proposed for any disease, even smallpox, typhus, and polio.

This is partly a social class bias, since most of those who say such things are secure of their jobs – they are people like me, who can work from home.  Or else, like journalists and politicians, they have something to gain from hysteria.  That we should take precautions goes without saying, but before you join the extremists, put yourself in the place of a poor man thrown out of work for six weeks and wondering how to keep food on the table.

Age has a lot to do with it too.  Unsurprisingly, the very young and healthy are reckless.  Understandably, the aged and vulnerable are anxious.  However, there can also arise quite a gap between the two groups in the middle.

On one hand are people old enough to have outgrown carelessness, but not old enough to have experienced previous episodes of serious public danger.   Many of them are badly frightened.  On the other hand are people old enough to have lived through several previous ends of the world.  Although most of them are cautious, many are also a bit skeptical, and they say so.

Whatever their age or social class, people who do fall into the badly frightened group tend to view all those who are not as frightened as they are as though they were irresponsible teenagers.  Since they view everything through this interpretive lens, nothing can convince them otherwise.

So if you're afraid that your older relatives are going out too much for their health, what should you do?  Call them up.  You can't catch the disease over the telephone.  Don’t scold them.  Find out what they need.  Don't assume that they'll tell you without being asked.  If you live in town or nearby, take it to them yourself.  Stand at the end of the driveway if you're afraid to get close.  Have the grandchildren talk to them through rolled-up car windows if you’re afraid to breathe the same air.

They'll understand.  But you need to understand too.

 

Now Is the Time to Be Bold

Thursday, 04-16-2020

 

In view of the efforts to slow the spread of the coronavirus, I had thought of writing a post about how pastors, priests, and bishops should be imaginative instead of supine, finding ways to administer the sacraments without having to pack large numbers of people into small enclosed spaces.

Reality has out-distanced me, for yes, some ministers have been more imaginative – and some officials have tried to step on them anyway.

It began with threats, for example when the mayor of New York City warned that he would permanently shut down some churches and synagogues.  Now, in some places, people have been charged with crimes just for worshipping.

Do you think this is just about the coronavirus?  It isn’t.  The coronavirus is an excuse for the oppression of faith -- and the precedents set now will persist.  Public officials may take reasonable measures to protect the health of our bodies, but some of them want to command our souls.

If the matter were not so abominable, it would be ridiculous.  Tell me why it is an acceptable risk to allow a restaurant to offer drive-by takeout of a sandwich, but not to allow churches to offer drive-by distribution of a consecrated wafer.  Tell me how it is that abortion is an essential service that may continue during the epidemic, but Holy Communion is not.

We need to add a new perversion to the Diagnostic and Statistical Manual of Mental Disorders.  Some people find the exercise of brute power to discriminate between activities they like and activities they don’t an orgasmic experience.  Unfortunately, such persons are disproportionately attracted into government careers.

Pastors, priests, bishops, I was going to ask you to be bold.  That advice is weeks out of date.  Please continue to be bold.  Be prudent, but be witnesses.  Respect legitimate authority, but do not allow yourselves to be intimidated by threats and arrests.  Lean into them.  Have us worship outside with six-foot gaps between worshippers if necessary.  Set up breezy open-air confessional booths.  Whatever it takes.  But please, do it for us. 

 

Conversation with a Six Year Old

Monday, 04-13-2020

 

One of my natural law students told me this week of a conversation with his six-year-old sister.

He had been learning that according to Thomas Aquinas, a command, in order to be a genuine law rather than an act of violence, must be reasonable, for the common good, made by competent public authority, and promulgated to all.

Sister:  "What are you working on?"

Brother:  "A paper about natural law."

Sister:  "I know about laws, you know."

Brother:  "Really?  What do you know?"

Sister:  "Laws are rules that make good things."

Brother:  "Good for you or for everybody?"

Sister:  "Everybody."

Brother:  "Yes!  And do laws have to be reasonable or just whatever somebody wants?"

Sister:  "Of course they have to be reasonable!"

Brother:  "And who makes them?"

Sister:  "The President!"

Brother:  "And who knows about them?"

Sister:  "Well, they have to be known about by everybody."

This adorable little scholar seems to be both an incipient Thomist, and, like most children, a monarchist.

 

Justin Martyr on the Resurrection

Sunday, 04-12-2020

 

The utterances of truth we judge by no separate test, giving full credit to itself.  And God, the Father of the universe, who is the perfect intelligence, is the truth.  And the Word, being His Son, came to us, having put on flesh, revealing both Himself and the Father, giving to us in Himself resurrection from the dead, and eternal life afterwards.  And this is Jesus Christ, our Savior and Lord.  He, therefore, is Himself both the faith and the proof of Himself and of all things.  Wherefore those who follow Him, and know Him, having faith in Him as their proof, shall rest in Him.

-- Justin Martyr, On the Resurrection

 

Has Common Good Constitutionalism Anything to Do with Constitutions?

Thursday, 04-09-2020

 

I cannot realistically choose not to be ruled by an elite.  At this point in history I probably cannot even choose not to be ruled by a technocratic elite.  But I do prefer to be ruled by the portion of the elite which is allied with a majority of the population.  That ought to mean a strong role for the elected legislature as contrasted with the unelected bureaucracy and judiciary.  Such constraint, however weak it may be in such times, is helpful, just because it is more difficult for an entire population to lose its common moral sense than for technocrats to lose it.

Complicating the matter is the fact that at present, the legislature is itself divided into two factions.  Both claim to embody popular rule, which in the strict sense is impossible.  But the leftist faction is wholeheartedly allied with unelected technocrats, and wants to employ coercion to displace the traditional morality, while the other faction is merely ambivalent about technocracy and morality.

The idea has been floated that since conservative judges are at last being appointed to the Supreme Court, the conservative commitment to the original intention of the Constitution has “outlived its utility,” and that conservatives should instead adopt something like the leftist idea of a “living” Constitution but turn it to conservative ends.  This seems to imply that originalism was never really about the Constitution but was merely a conservative pretense for gaining power, in the same way that the “living” Constitution has been a liberal pretense for gaining power.

I hope I am reading this new conservative theory incorrectly.  Perhaps no pretense was intended, and if so, I will accept correction.  But I am sure that we should reject pretenses and deceptions of all kinds, even noble lies.

Besides, the notion of a “living” Constitution is hardly more palatable in the hands of conservatives than in the hands of leftists.  It is merely a way to disempower legislatures altogether, so that law is shaped entirely by the executive in alliance with the technocrats.

Granted, it is impossible for a judge not to consider the common good, for if he does, he will be incapable of understanding the considerations of common good that the legislators themselves intended.  And this is important.  But the chief responsibility for considering the common good, along with its relation to natural law, common law, law of nations and the rest of it, lies with those who made the Constitution and laws, to whom, under all but the most extreme circumstances, he should defer.  Judges are not competent to take first place and set policy for the entire country.

 

 

How Will the Coronavirus Change Us? Let’s Rephrase That

Monday, 04-06-2020

 

A great many people are asking how the coronavirus will change us, but that is not the right question.  The only way the virus can change us is to make us sick, God forbid.  Any other changes will come about not because of the virus itself but because of our response to it.  All in a rush, we are making the decisions that will change us right now.  The right question, then, is which ones we are making.

For example:  Maybe not – but families fed up with ever-increasing cost and the ever-decreasing content of college education might demand massive reductions in expensive classroom instruction.  Since the school refuses to refund my kid’s tuition on grounds that he’s still getting the same educational value online, why not teach all courses that way?

Maybe not – but persons whose sense of their faith is already iffy might slack off from the practice of worship and participation in the sacraments.  If even my pastor says I should just watch the service online during the epidemic, why couldn’t I do that every week?

Maybe not – but panicky citizens might stop complaining about governmental interference with religious institutions.  Here and there a few small churches and synagogues have continued holding public worship services, perhaps reflecting that if ever people needed God, they need Him now.  Responding to those few, the mayor of New York City threatened not just to prevent these churches and synagogues from holding large public meetings during the epidemic, or prevent them until the epidemic is over from violating social distancing guidelines -- which would not have been unreasonable -- but to permanently shut them down.  He has no authority to do so, but that does not make it unimportant that he wanted to and thought that he did.  Will such bullying become a precedent?

Maybe not – but fearful of widespread economic collapse, voters might be all too ready to exaggerate the power of government and to think that there is nothing special about a competitive economy free of constant, pervasive political intervention.  How the economy works is not widely taught, and many think “free market” is a synonym for “greed.”

Maybe not – but the shift of power and initiative from the states to the central government, nothing new in itself, might accelerate.  To many people, the idea that the states might be laboratories capable of making their own decisions, perhaps even trying out new responses to the emergency, seems a useless abstraction.  When citizens are afraid, the urge to have the federal government control and direct everything is strong.

Maybe not – but we might see the yearning to turn everything over to technocrats become even stronger than it already is.  How many times have you heard it said that politicians should get out of the way and let “the scientists” do their work?  But experts are political too, and even if they weren’t, what policies to make in view of competing economic and epidemiological models is a political decision.

Maybe not – but global trade might become even less popular.  I count myself a free trader, but even most free traders can see danger in relying on overseas providers for goods crucial to national health and security – especially when the interests of the countries from which we get them may be opposed to our well-being.

Maybe not – but the configuration of international politics might change, as the statements and declared intentions of the totalitarian rulers of China concerning the crisis fall further into disrepute.

These are only could-bes and might-happens.  In another two years, things will look different.  But we should be thinking right now about what we are doing to shape them.