Wall Street Opinion Journal JAMES TARANTO Thursday, May 5, 2005 12:01 a.m. EDT
Secular liberals show open contempt for traditionalists.
I am not a Christian, or even a religious believer, and my opinions on social issues are decidedly middle-of-the-road. So why do I find myself rooting for the “religious right”? I suppose it is because I am put off by self-righteousness, closed-mindedness, and contempt for democracy and pluralism–all of which characterize the opposition to the religious right.
One can disagree with religious conservatives on abortion, gay rights, school prayer, creationism and any number of other issues, and still recognize that they have good reason to feel disfranchised. This isn’t the same as the oft-heard complaint of “anti-Christian bigotry,” which is at best imprecise, since American Christians are all over the map politically. But those who hold traditionalist views have been shut out of the democratic process by a series of court decisions that, based on constitutional reasoning ranging from plausible to ludicrous, declared the preferred policies of the secular left the law of the land.
For the most part, the religious right has responded in good civic-minded fashion: by organizing, becoming politically active, and supporting like-minded candidates. This has required exquisite discipline and patience, since changing court-imposed policies entails first changing the courts, a process that can take decades. Even then, “conservative” judges are not about to impose conservative policies; the best the religious right can hope for is the opportunity to make its case through ordinary democratic means.
Missourian – “D.C. Circuit nominee Janice Brown?s views are so out of the mainstream that they have just been soundly rejected in a unanimous Supreme Court decision that did not even draw a comment in concurrence from Justices Scalia or Thomas. Like the district court in Lingle v. Chevron, No.04-163, –S.Ct.–, 2005 WL 1200710 (May 23, 2005), Brown has argued?quite stridently?that government regulations should be closely scrutinized under a heightened standard of review when challenged as a taking of property without just compensation. The Supreme Court unanimously found that this view was ?remarkable? since the reasons for deference to legislative judgments ?are by now well established,? and ?government hardly could go on? if every regulation that diminished property values was considered a taking.”
http://www.acsblog.org/
Sounds like even Justice Scalia considered Brown extreme and outlandish.
The debate on Justice Priscilla Owens was ended by a vote of 81 to 18. The door is now open for an up or down vote, which will end up with Justice Owens sitting on the 5th U.S. Circuit Court of Appeals (let the wailing and gnashing of teeth at NARAL and PFAW begin).
81 to 18. Wow (Gotta love those principled Democrats, who felt that the nomination of Owens was a threat to our very democracy). Those are rather amazing numbers for a Judge who is “of questionable competency, extreme and [holds such] outlandish views that [she is] inappropriate for elevation to the appellate bench.”
Makes one wonder what are they putting in the Senate Kool-Aid these days.
Dean, you just buy the entire package lock, stock and barrel
I don’t have time to debate law with you, Dean. A proper discussion of the standards of constitutional review of what are called “taking” cases is beyond the scope of this blog.
I don’t have time to teach you the overall framework of constitutional analysis. I don’t have time to summarize for you the historical development of the constitutional analysis of “taking” cases. I don’t have time to do a survey of the published opinions of the various federal appellate jurisdictions on this issue. I don’t have time to summarize the research and analysis of the leading constitutional scholars who have written on this topic.
You don’t know what you are talking about, Dean. You are not equipped to understand the significance of the opinion you cited even if you think you are. Many times I have stated that I don’t comment on theological debates or medical debates, apparently your expertise knows no bounds.
Missourian: You seem to believe that only lawyers should comment on law, medical professionals should comment on medicine, and official theologians should comment on theology. Following that course, each of those professions would get into a state where common sense is not used and only tit for tat professional courtesy is used to reslove disputes. Oh, I forgot, each of those fields is all ready in that state precisely because they have been left to self-styled experts who either have or quickly develop wall eyed vision with no respect for the foundation of the consequences of their profession.
Law left to lawyers is tyranny
Medicine left to doctors is death
Theology left to theologians is apostasy.
However, given Dean’s penchant for following liberal talking points, I would hazzard a guess that his conclusion lacks balance and substance.
Jim, et.al. re #169: I couldn’t convince my son to join in directly to share his ideas on a Christian approach to war. To quote him, he “chickened out”. With his permission and his editing, I will briefly summarize his main points. Maybe he will join in later.
1. Use of deadly force is not a doctrinal issue as it does not touch on the nature of God, the Church, or humanity.
2. Since it is not a doctrinal matter, it becomes a moral and spiritual choice which must be made based on the overall teaching of the Church, the guidance of the Holy Spirit, and one’s own conscience. Therefore the choice never rises to the level of eternal truth, nor has the Church ever claimed that it did. Recognizing that there are times when the use of deadly force is proper and times when it is not does not constitute “moral equivalency”.
3. We are commanded to confront evil first in ourselves, accepting all consequences of that confrontation, even if it means our own death or the death of those we love.
4. We are told to love our neighbor as our self.
5. We are told that the greatest love we can have for our neighbor is to lay down our life for him.
6. Since we live in a fallen world, evil has a physical reality that, at times, must be confronted physically.
7. Since we live in a fallen world, any choice we make will be made from mixed motives, sinful and pure.
8. Since we live in a fallen world, any action we take or refrain from taking will either cause someone to be hurt or allow some one to be hurt.
9. The clear preference of the Church throughout the centuries has been for her children to engage in non-violent peacemaking as part of the confrontation with evil. To assert otherwise would be clearly wrong. In fact, we are all called to do all that we can to make peace.
10. The biblical term peacemaker is an active word, there is nothing passive about. It could be translated as “do peace”.
11. Peace is not the absence of confrontation
12. There are times when physically stopping others from being hurt is the highest calling we, as Christians, can engage in even if it means the killing of another human being.
13. There is no qualitative difference in killing one person to protect yourself or another and in killing in warfare. Outside of protection of one’s self, one’s nation or others, killing is wrong.
14. For some few Christians, there exists a vocation of physical protection. One who enters into this vocation must be willing to not only lay down his life for his friends, but even risk his own salvation at times to protect others from harm and destruction-a just warrior.
15. Unseen warfare and non-violent peacemaking must also be engaged in by one called to the physical protection of others. Such a task cannot be entered into lightly.
16. There will be times when the just warrior must refuse to use violence even if ordered to.
17. There is no such thing as a just war, and for the Church to promulgate a “just or justifiable” war theory tends to raise such warfare to the level of doctrine and makes the Church subservient to the state. A position she should not have.
18. The Orthodox Church has never been a pacifist Church, even in pre-Constantinian times, although prior to legalization, for Christians to fight for Caesar was extremely difficult.
19. There exists numerous supports for this thesis in Scripture, the Divine Liturgy, the lives of the saints, the teaching of the Fathers of the Church and the testimony of many upright and holy people in more modern times.
Note 213: This sounds like a very reasoned, ethical approach toward warfare. It is a viewpoint that recognizes that armed conflict is to be undertaken with caution and even with a sense of sorrow and regret over its necessity. It also refuses to adhere to a blind sense of unquestioning patriotism.
I appreciate that your son is so thoughtful in these matters. I think you mentioned that he will be entering the military? If so, my prayers are with him.
Note 212. Michael, your point is reductive. When I need medical care, I go to a doctor, not a lawyer. When I need legal advice, I go to a lawyer, not a theologian.
What you are really saying if I understand you, is that the big questions can’t be left to specialists, and I would agree with you completely. However, when a non-lawyer quotes the law, I want to hear the lawyers chime in too. They know more about the law than the layman. Same with medicine. Same with theology.
JamesK,
I feel that you believe joining and fighting in the military is a necessary evil or a lesser good. To feel sorrowful in armed conflict is good. However, regret implies that what you are doing is intrinsically wrong. I don’t believe that it is either a necessary evil or a lesser good. Since evil has a physical reality, due to the fallen nature of the world, the just warrior can be just as valid a vocation as non-violent peacemaking, if approached in the proper manner.
Fr. Hans, re #220. Yes, of course, when wants specific professional advice, one chooses the most highly trained, communicative person one can find in that profession. My point was exactly that when such professionals wish to limit or eliminate all comment on their profession by non-members bad things happen. A elitist mindset develops that is destructive to the real intent of the profession or craft.
I certainly trust Missourian’s legal analysis over Dean’s any day of the week but that is not the same as accepting the implied comment that only lawyers are competent to comment intelligently on legal matters, etc.
“[A] just warrior can be just as valid a vocation as non-violent peacemaking, if approached in the proper manner”
I have stated basically the same thing elsewhere. My point was simply that the role of a soldier is one that can be spiritually perilous and that all war reflects a failure on both sides (though in widely varying degrees of moral culpability) to arrive at a peaceful solution.
Thank you for clarifying your point, James. I agree that the role of the soldier can be spiritually endangering. However I am not sure what you mean by “all war reflects a failure on both sides (though in widely varying degrees of moral culpability) to arrive at a peaceful solution.” Would you explain this please? Allow me to clarify my point: I believe that the just warrior fights to create peace and therefore, when not physically fighting, must use non-violent means to create peace. I believe that the just warrior must also be a non-violent peacemaker.
Michael, Note 217
Practicing law without a license is a felony. The formulation of a legal opinion is the very essence of the practice of law.
Michael, in appreciation of the many very informative and insightful comments you have contributed to orthodoxytoday, I will try to respond to your note 217 properly.
American law is somewhat akin to a logical geometry. If you remember your geometry it was founded on axioms and developed through theorems. American law is a logical system and it has its axioms and theorems. It also has a vocabulary with specific defined meanings. Some of the vocabulary has dual use, it has a meaning in common parlance and a distinct, often different meaning in legal parlance. One example is “reasonable care.” This phrase has a common meaning, it also has a legal meaning. The legal term “reasonable care” is really a shorthand for a long string of rulings and decisions made by American Courts.
There exists something called a “legal opinion.” Now, this is can be misleading, in common parlance an opinion doesn’t hold as much weight as a factual assertion or a scientific finding. A legal opinion, however, is a completely different matter, it is a type of work product peculiar to an attorney. A legal opinion is a statement summarizing what the current law on a given issue. The legal opinion is the result both of research and evaluation. Legal research is a skill which can be exercised after one has acquired a body of knowledge. When a lawyer completes legal research on an issue you are assured that all relevant authorities have been located and taken into account. The opinion based on that research is the product of legal analysis based on a variety of principles.
Here’s an example. In my practice, I have examined the complete chain of title of a piece of real estate and given an opinion to a potential buyer as to whether the seller has clear title (yes, exciting work, this). The buyer is given a written, formal legal opinion. He can then rely on this to decide whether to purchase the land. If my opinion is erroneous (never!!!) I can be sued for malpractice (hasn’t happened so far in my twenty plus years of practice). So, legal opinions have a very distinct and well-defined nature and they carry legal consequences in and of themselves.
It is easy for Dean to find a legal case and pick up a few comments and misinterpret the text he is reading. I know I sound insulting, but, I am truly stating a fact. When Dean tries to interpret a legal decision, he truly does not know what he is talking about. The truth’s the truth, there you have it.
If a non-lawyer fradulently claims to be a lawyer and takes money for legal advice, for a legal opinion, he is practicing law without a license. Practicing law without a license is a felony.
The idea that “medicine left to doctors is death” has a nice ring to it, but really, Michael, I trust you seek out the advice of qualified medical professionals when you are ill. I don’t really think you would ask Dean to read an X-ray to determine whether that lump near your spine is benign or malignant. I also trust that if you discovered someone practicing medicine without a license you would turn the scoundrel in to the authorities.
As to theology, hmmm, not my department, perhaps Fr. Jacobse can respond to that.
Missourian: I am sure your are correct. Nevertheless, my point, indelicately and reductively put is that in law, medicine, theology and many other professional fields common sense, ethics, and morality get lost in the morrass of jargon, technical details, and old boy fraternization of those in the club. Many times when lay people object to such a state, they are shut out of the debate by the types of appeals you often make.
If law is too complicated for anyone else but lawyers to understand, it is no wonder the rule of law is fast disappearing in this country. If medicine is so technical and scientific that no one can understand their own treatment, how can phrases like patient autonomy and informed consent have any meaning.
In Orthodoxy, theology is not thinking about God, it is communicating one’s experience with God within the Tradition of the Church. Therefore theology is open to anyone at anytime. The Church herself is the judge of what is proper and what is not. Indeed the way in which we approach theology is one of the prime differences between East and West as St. Gregory Palamas so effectively pointed out about 600 years ago. The West became uncomfortable with such a state because it can lead to improper theological speculation and heresy if not properly monitored.
In the West the Pope and the Magisterium became the sole judge and a legalistic approach gradually developed over time. In the East the body of theological thought produced by the first seven Ecumencial Councils, the received Tradition of the Church which includes the Holy Scripture, the writings of the Fathers, and the lives of the saints form the crucible in which theology is tested. The Holy Spirit the Lord and giver of Life and Jesus Christ as active head of the Church provide the dynamic.
Michael:
Discussion about Constitution Theory and Judicial Functions:
I understand your argument. However, in this case, the particular issue was whether Janice Owen could be understood to be an “extreme judge” or a “conservative judicial activist.” Dean referred to a taking decision of hers that had been overturned. He concluded from the mere fact that a decision of hers had been overturned that she MUST be a extreme judge. In order to evaluate this charge against Janice Owens one had to understand alot about constitutional theory, not a topic that people can draw common sense conclusions about.
Actually, judges can dodge a reversal from a higher court by dodging the bullet and deciding a case on a technical matter that does not approach what is called “the merits.” This type of judge is widespread and their actions constitute a type of intellectual cowardice and laziness.
There are some legal topics that lend themselves to general discussion. A great deal in the criminal law and tort law is amenable to ordinary logical and moral analysis. Constitutional law is a deep topic, I can’t change that.
I think our schools should demand more from students and require them to study the Constitution on a higher level than is common in most high schools and colleges. I don’t think an American holding a high school degree or a college degree should be ignorant about the Constitution, even some of the deeper issues, but, there you have it, our public schools operate at a very low level in my opinion.
Michael, I do think you have to agree that I have expressly bowed out of many theological, Scriptural and medical debates because I just didn’t consider myself sufficiently well-informed to contribute something intelligent to the discussion. I would appreciate it if other people would observe the same limits.
I would also appreciate it if people would recognize that a “legal opinion” is the primary work product of a legal professional. It is comparable to a formal “medical diagnosis.” It holds special significance above and beyond a person’s ordinary opinion about politics or society.
I am nearly at a point where I will be swearing off all comments. I don’t want to make legal comments unless they are of high quality and I don’t have time to research a legal question for the sake of an on-line site. I am supposed to be studying for the patent bar exam right now. I really can’t justify spending time preparing complete and well-documented legal arguments.
I do benefit from and enjoy your posts however, so please keep posting.