A president against the constitution?

I was planning to comment on the two excerpts from Pope Benedict’s Mexican and Cuban homilies, when I run into a piece of news that made me jump.

Some Mr. President must be quite desperate to belie the whole Constitution of the United States. Perhaps because he is afraid that he already did it. I read in fact that Barack Obama made a scathing remark against the possibility that a “non elected group” of people might revoke a law legitimately made and voted by a solid majority of the Congress “democratically elected”.

It looks like that he was thus expressing his worry about the possible destiny of his much debated Obamacare. Or was he warning the Supreme Court from erasing it?

However we interpret it, this remark shows how little such Mr. President understands the ground of the USA constitution as defined by the Constitution.

The only excuse for him is that the same mistake is widespread: the belief that democracy essentially consists in determining governance by way of elections. Well, elections are undoubtedly important to decide who in turn enjoys the favor of the majority, to govern and make laws. But it isn’t enough the rule of the majority to make democracy – if we want to keep to the name an acceptable meaning!

What is needed is the rule of law: a law that no majority can make or change. That’s why sovereign is the Supreme Court, the non elected Justices in charge of reviewing the laws the Congress makes. Neither it is them, however, who by their decisions make the law: above them is the Constitution, before the Constitution the Declaration of Independence, and still before this a tradition of natural law that informed it.

This takes me back to the excerpts from Pope Benedict’s homilies I wanted to comment upon.

The freedom of which Benedict spoke in Cuba is now at danger: in America, as well as in Europe, where it might be already gone.

In Europe we are playing ostrich, and hide our head under the sand, feigning that religion does not concern the public space. The sand I speak of is that of willful ignorance, not wanting to know the facts of history, which show that religion always defined the public space, so that people recognized themselves as true men by belonging to a certain kingdom. Only a King who declared that his kingdom was not of this world, made them free to recognize their same humanity beyond all borders.

By choosing to ignore that King, we tend to idolatrize the kingdom that, literally, de-fines our humanity: call it, if you like, EU, or USA – if these were to be plied to the desires of the intellectual class that made the President. For all its pretence to be utterly open to anybody, whichever his/hers religion and culture and sexual preferences, it fails to understand anybody who declares that such things do actually make a difference with regard to the recognition of a common humanity. So, we could even have laws made (against, say, “omophobia” or “islamophobia”, or deciding what is good for you) to silence people who don’t agree with the undifferentiated view of man held as normative for democracy.

HP

Benedict XVI in Mexico and Cuba

I’d like to relate these two passages, the first from the homily Pope Benedict gave in Mexico, the second from the one in Cuba:

Dear brothers and sisters, by coming here I have been able to visit the monument to Christ the King situated on top of the Cubilete. My venerable predecessor, Blessed Pope John Paul II, although he ardently desired to do so, was unable on his several journeys to this beloved land to visit this site of such significance for the faith of the Mexican people. I am sure that in heaven he is happy that the Lord has granted me the grace to be here with you and that he has blessed the millions of Mexicans who have venerated his relics in every corner of the country. This monument represents Christ the King. But his crowns, one of a sovereign, the other of thorns, indicate that his royal status does not correspond to how it has been or is understood by many. His kingdom does not stand on the power of his armies subduing others through force or violence. It rests on a higher power than wins over hearts: the love of God that he brought into the world with his sacrifice and the truth to which he bore witness. This is his sovereignty which no one can take from him and which no one should forget. Hence it is right that this shrine should be above all a place of pilgrimage, of fervent prayer, of conversion, of reconciliation, of the search for truth and the acceptance of grace. We ask Christ, to reign in our hearts, making them pure, docile, filled with hope and courageous in humility.

Furthermore, the truth which stands above humanity is an unavoidable condition for attaining freedom, since in it we discover the foundation of an ethics on which all can converge and which contains clear and precise indications concerning life and death, duties and rights, marriage, family and society, in short, regarding the inviolable dignity of the human person. This ethical patrimony can bring together different cultures, peoples and religions, authorities and citizens, citizens among themselves, and believers in Christ and non-believers.

Is it clear enough why I relate them? If not, perhaps a look at our last posts should do.

HD

The latest from the editors of America

The editors of America magazine have revised and extended their remarks in consideration of the HHS mandate. In an editorial dated March 12th (appearing in their Newsletter dated March 26th), America's editors write:

Government’s Task

In our March 5 editorial “Policy, Not Liberty,” we commented on the objections of the U.S. Conference of Catholic Bishops to President Obama’s accommodation on the health insurance mandate. We identified, by way of example, “the needs of self-insured institutions” as an obvious problem needing correction. In the weeks since that editorial appeared, the bishops have raised anew serious issues that need attention. A key issue, which we regret we failed to identify in that editorial, is the narrowness of the underlying Department of Health and Human Services regulation maintaining a limited definition of religious institutions, a formula to which the bishops, as well as America in an earlier editorial (“Taking Liberties,” 2/13), objected.
This is not an issue for the United States alone. Archbishop [Silvano] Tomasi, representing the Holy See, observed when speaking to the U.N. Human Rights Council on March 1 on the issue of religious liberty worldwide: “The task of government is not to define religion...but to confer upon faith communities a juridical personality so they can function peacefully within a legal framework.” The church cannot function peacefully in the United States under the current regulatory framework. The existing regulation demands reworking.
There are conflicting reports about how seriously the two sides are engaged with one another at this time. We hope that in the weeks ahead, as the bishops and the administration attempt to resolve their differences over the H.H.S. mandate, the legal definition of religious institutions will take a top priority. We trust that, with good faith efforts, this potentially explosive issue will be defused, and we support the bishops in that effort. — March 12, 2012

I renew my gratitude to the editors for their leadership by example of civility in their engagement of the national discourse; I add praise for their earnest and forthrightness; I promise my continued prayerful best wishes for their work.

LD

True liberalism

I am sure I detest the man O as much as the liberal press and academicians and show biz detested the man B. But, if it is so, what sense there would be for me to speak? Just to express my irrational dislikes as they express theirs? They saw in the man B a sort of tyrannical figure, and because of this they promoted the man O with all the means possible, making themselves believe in the humbug of his messiah like act as liberator. Of course, this kind of liberation was perceived by the other side as tyranny.

The LD has done a good job in the previous posts in sketching the reasons why this is really the case. The questions unsolved of European history, to which America wanted to represent the solution, regurgitate again in America: I mean the questions concerning the relation of politics and religion, in which the man O, and the liberal press and academicians and show biz that created him as a public persona, want to realize a total return to Europe. As if there had never been an American experiment worthy of notice.

In the (quite vain) hope to establish a dialogue with the liberal friends, I could say that America has been an experiment in “liberalism”. But I would need immediately to make them notice that liberalism isn’t an univocal word.

I take, to explain what I mean, this line from an article by an Italian university professor, who ranged from his teaching of history of math to more general questions of education and politics:

“The United States are by now torn by the schizophrenia between liberal tradition and authoritarian social control.”

How did that schizophrenia between “liberal” and “authoritarian” came to be? asks himself the author of this line. Because, it is the answer he gives himself, of another factor, besides liberalism, determining American culture: the idea that everything can be dealt with scientifically, measuring it by quantifiable factors.

This might even be true, but, leaving aside the fact that it is not peculiar to American culture, because you find the same idea in Europe, it doesn’t take into account that, in the States, the will to ensure democracy by exercising a control from on high upon society it is precisely what has come to be identified by the name of liberalism.

So, in the European continental (or perhaps mainly Italian) use, it is called liberal someone who is against state invasiveness in people’s life, while in the American use it is so called someone who is favorable to state intervention in it. Which makes embarrassing any time I speak of liberalism to Americans, having to explain in which way I mean it. While talking of this with the LD, he remarked that the ambiguity is avoided by speaking in the continental sense of “classical liberalism”. If that was the classical, pristine sense of the word, what then needs to be accounted for, to explain the said schizophrenia, is how liberal aversion to state intervention turned into favoring it.

In the States, often those who refuse state invasiveness into people’s life also like to call themselves libertarian. Now, “libertarians”, over against “liberals”, are ranked among “conservatives”. But here again there is an ambiguity, because conservative embraces also communitarians. And libertarians and communitarians are not necessarily the same thing.

Liberal, libertarian, are cognate words, both having to do with liberty. Communitarian, instead, has to do with community. Beautiful things, community and liberty, together they make up what in the Christian inheritance we call love: that reciprocity of eros (the desire of the good that can only come from someone else’ graciousness) and agape (the disposition to be so gracious toward someone else) that represents the common law of society, prior to any state legislation.

I have to recall these things, be it in short strokes, because, even though they should be known to all, they are no longer part of our public education. Being hidden behind the all but clear distinction of politics and religion on which European as well as American public debate rests.

Of course Christianity didn’t invent love. Peculiar to it, when it enjoins to love one’s “enemies” as well as one’s “friends”, meaning the out-group as well as the in-group, it’s the extension it gave to it. In as far as it joins people together, within its bounds the body politic is in any case religious; by the commandment to love “enemies”, Christianity doesn’t actually tear down group boundaries, but makes them all permeable, universalizes the religious bond and potentially makes of humanity as such one body politic. As a matter of fact it introduces, by so doing, a distinction of church and state elsewhere absent: with the church, as representative of universal humanity, and the state of its local concretions. Following the modern crisis of Christendom culminating with the protestant reformation, the European states declared themselves sovereign, superiorem non recognoscens, absolute representative of the humanity of their people, more subjects than citizens. This meant that the states declared themselves the supreme legislators within their boundaries.

Liberals and sheer libertarians, as distinguished from communitarians, share then this common assumption: that it is the state to make the law. Once this is granted, the fact that the ones favor the law maker’s invasiveness into peoples’ lives and the others abhor it becomes secondary. The turning of classical liberalism into now days liberalism becomes then understandable. And the strife between the two a matter of taste. Unless we take from communitarians a rejection of that assumption, as inherently tyrannical.

To escape such a tyranny peoples emigrated to the new world, and the founding fathers made of America that experiment at which authors like Alexis de Toqueville could look at as a paradigm. If a risk De Toqueville saw in it was that of the tyranny of majority, but kept at bay by the religion of the people, that preserved the States from becoming a state in the absolute, totalitarian European way. But today the risk, in a European fashion, is rather the opposite, that of a self-declared enlightened elite, that despises the majority, when, with its culture and religion, doesn’t follow its lead. Thus putting an end to the experiment.

I called it an experiment in liberalism, to maintain the appeal to the “liberal tradition”, when it doesn’t succumb to the temptation of authoritarian control. If we recall that from the same root it comes also the word liberality (largess in giving), we can recognize in America an experiment in holding together community and liberty.
HP

A reply to the editors of America

In their opinion dated March 5, 2012, the editors of America magazine recall several elements that are basic to the Church's tradition of thinking about politics. Many of these same elements (not the least of which is the unstated though palpably present appreciation of reasonable civility as the necessary condition of any national discourse that would have reasonable hope of bearing fruit) are constitutively present to the American genius for ordering our lives together. I share the editors' concern lest we lose sight of the importance of civility, and I happily extend grateful praise for their efforts to lead by example in this regard.

Also quite praiseworthy is the construction of the editors' argument: complex and nuanced, its concern from first to last to remain within the great tradition of Catholic moral and political thinking and to apply the tools of that tradition to our present crisis, is evident.

It was especially refreshing to see the editors attempt to articulate a cardinal distinction in political thinking: namely, that between principle and prudential reasoning under the guidance thereof, in accord therewith and pursuant thereto. Refreshing indeed, for our many years' forgetfulness of this distinction has stagnated our whole national discourse and damaged our public conversation, generally. Unfortunately, their precise formulation of the distinction is rather exceptionable - and their specific application of it misplaced.

The editors opine, "The US Catholic bishops' religious liberty campaign seems to have abandoned a moral distinction that undergirded the conference’s public advocacy in past decades: the contrast between authoritative teaching on matters of principle and debatable applications of principle to public policy." By couching the distinction as a contrast, the editors call our attention to a fact of public thinking - that principle and prudential application of it shade into one another, and that the closer they are together, the more difficult it becomes to make real distinctions between them. Here matters begin to come into focus: there is a very bright line of distinction in the present case, and it is the editors - not the bishops - who fail to see it. The plain text of the US Constitution guarantees free exercise of religion: the issue is therefore one of Constitutional principle, directly and immediately. In treating the issue as such, the bishops are not abandoning the aforesaid distinction: they are judging according to it.

The mandate's original formulation is not only unconstitutional. It flies in the face of the "common sense" of the American people; ultimately, it is offensive to reason. That the original mandate is all three at once becomes clear when we consider that the HHS regulation is not simple in its operation, but does two things: it mandates that all employers, including non-profit employers, offer the "full range" of "preventative care" options (including sterilizations and abortifacients); it declares that Catholic schools, hospitals, charities, etc., are non-profit employers sic et simpliciter - which is to say that they are not religious enterprises at all. The surreptitious presupposition upon which the rationale behind the policy must rest, is that religious groups and institutions are naturaliter incapable of contributing to the common good - that when they do, they cease to exercise themselves in a way that the civil authority is bound to recognize as rooted in and internal to those institutions' essential character and ethos, and therefore subject to an especial or particular right, privilege or immunity. This is inconsistent with both the plain text of the Constitution and the understanding of the role of religion in building, sustaining and strengthening the civil society that has been the traditional pillar and bulwark of ordered liberty in America. In other words, the rationale behind the policy is based on a presupposition that, if correct, must lead us to conclude that clothing the naked, feeding the hungry, welcoming the stranger, visiting the prisoner, teaching the ignorant, healing the sick, caring for the dying, and burying the dead, are not and cannot be considered properly religious activities at all - and so, because they serve the common good (the which power to define and determine the civil authority has, in the same stroke, arrogated to itself, sole and entire). This is not merely unreasonable: it is in principle at least as radical a "privatization" of religion as anything to be found in any Soviet constitution.

The President's proposed "accomodation" leaves all of this matter in place. The proposal adds insult to injury, saying essentially that, though the Church shall not be free to serve society except on such terms and in such a manner as the government shall prescribe - even and especially as regards the internal governance of her service institutions - Catholics shall nevertheless be required to believe, confess, and henceforth tamen impossibilis practice free lunch.

The editors say that the bishops have been most effective in influencing public policy when they have acted as pastors, trying to build consensus in church (sic) and society. I agree. What I fail to grasp is the pertinence of the observation, unless it be found in the implicit suggestion that the bishops, attempting to vindicate the rights of the Church, are somehow not behaving pastorally. One of the shepherd's chief duties is defense of the flock: this will mean fending off predators, and sometimes slaying them (cf. 1 Sam 17:34-35). Surely then, stern words with one who would encroach on the pastures will not be unseemly.

Singly and as a body, the bishops have written, spoken and assembled. Some of the bishops have issued statements more measured and thoughtful than others. In their joint address, the bishops have stated their case in the language of truth, and divested of those expressions of servility which would persuade the President that they are asking favors and not rights (cf. Thos. Jefferson, A Summary View of the Rights of British America). Far from wanting a conciliatory tone, the bishops have spoken corporately in the way free citizens speak to their rulers. Whether the American public is, as the editors say, "uncomfortable with an overt exercise of political muscle by the hierarchy," is beside the point. In petitioning the government for redress of grievance, the bishops are exercising one of the most basic rights guaranteed to all citizens under the Constitution.

The editors also accuse the bishops of, "fail[ing] to acknowledge that in the present instance, claims of religious liberty may collide with the right to health care, or that the religious rights of other denominations are in tension with those of Catholics." This pair of accusations confuse the issue in a pair of dangerous ways. First, the accusations suggest that the Catholic concern is merely for religious liberty, or worse, that our concern for religious liberty stands somehow over and against the right to healthcare - specifically, that is, that the Catholic position on artificial contraception is not concerned with the best interests of women especially and of human persons, generally. Second, the accusations are red herrings. The issue is not about women having a right to health care: it is about whether government can force the Catholic Church to pay for contraceptives, abortions and sterilizations. The "tension" between Catholic and other denominations is entirely imaginary - literally fantastic: the land where one group's vindication of its right to govern itself according to its moral convictions could possibly threaten the liberty of another group to do the same, or where government's attempt to infringe on one could possibly not threaten all others, were a land surely peopled by pixies, a land of unicorns, a land of square circles and free lunches, where all the men are king's men, and what matters is who is master.

LD

Christmas spirit for the whole year

I had an unfinished little Christmas meditation left in my draft page. Christmas is passed, and just started the new year. So, the best I can do is to wish that something of the Christmas spirit is going to endure in the new year, and to ask, to resume that meditation, what that spirit is.

No much good to say about the past year. The financial crisis keeps on plaguing us, and an incompetent man sits in the White House, incapable of promoting in people that hope on which he based the campaign that led to his election (rarely the promises of the electoral campaign have been more belied by the reality of the person and of his administration: he presented himself as post partisan, and acted in a way that more partisan could hardly be; he presented himself as post racial, and with him racial tensions came back to the fore in America). Not many reasons of hope seem to be looming at the horizon. In this moment of lack of American leadership, exploded the so called “Arab spring”: the revolt against autocrats that appeared as a promise for democracy in Arab countries, but out of which are emerging to power the only organized groups, like the Muslim Brotherhood, which only promise an increase of the tension between the Islamic world and the rest of us. Not to speak of Iran.

I won’t keep on going listing the evils that threaten our world, East and West so called. As far as the Western side of the world I’d number in the first place the failure of confidence: word that includes the root fid of fides, faith and trust together.

At the end of the Christmas and New Year holidays there is for the Catholic tradition the Epiphany: the manifestation of what happened at Christmas, when the Magi hail in a baby the “new born king”, which marks the turning into a new year.

Here you have the Christmas spirit: it’s a spirit of hope, the hope coming from a birth. In Italian it is called Natale, in Spanish, Natividad: a birthday, that we celebrate.

What is it then that we do celebrate when we remember somebody’s birthday, and may be throw a party for him or her? Pretty simple: the joy that he or she brought into our life.

A beautiful Hollywood movie of 1946 by Frank Capra, It’s a wonderful life, best illustrate this sense of the celebration represented by Christmas. Here is the story: on Christmas Eve a man meditates suicide, because of the bankrupt that threatens his life work, which makes him think that better were not to be born; the miraculous intervention of his guardian angel makes him see how things would have been if he really had not been born: that is, because of all the good that he did, much worse; he asks for his life back, and finds all the friends he made, knowing his difficulties, bringing in thanks more than he needed to be saved from bankrupt. The moral is that the good one does is the difference that makes his being born worthy, for others to celebrate.

The more the good done, the larger the circle of the people celebrating the birth. The good one does, however, doesn’t extent itself only in space, but also in time, and gives therefore to celebration its character of recurrence: the good brought of old to life by someone gives reason to celebrate, with his birth, birth itself as the coming to life.

Should someone find what I just said not clear enough as illustration of the meaning of the Christmas epiphany, he might think of what happens today, when the reasons for celebrating are, if not erased, at least hidden. Birth is surrounded by expectations and recollections of renewal of life which make of it a social, public affair. Stripped, instead, of the expectations and recollections of communal life, it doesn’t remain but a biological event. Uselessly we confer to the newborn inherent rights, these are not enough to make of him a public person: one is and remains private – word coming from the same root of “deprived”, lacking of something essential, that makes him appear to others as a promise of good, and, by seeing himself through others’ eyes, makes him feel his being born a worthy thing.

When the good reaches the whole community, we have the kind of person traditionally called king. But they are telling us that in our democratic society there are no longer kings, only experts, qualified as such by the mainstream culture passed over by universities and media, not to inspire us to the good, but to direct our lives in a way politically correct.

Hence despair and partisanship. Over against which it stands the Christmas spirit of celebration of birth.

HD