Tag Archives: Constitution

The Presidency: Knowing When to Say When

Presidents Day is coming up here in the U.S. on Monday, and while these days there really are not any traditions to speak of for this holiday, it is a good opportunity to reflect on the limitations of that office.  Technically the holiday is the official celebration of the birthday of George Washington.  However its proximity to the birthday of Abraham Lincoln, not to mention laziness in both academia and in the popular press, has turned it into a day when we celebrate all of the U.S. Presidents.  Thanks to our incessant need for advertising of course, we are being bombarded this long weekend with images of Washington, Lincoln, and others – even non-Presidents like Benjamin Franklin – trying to sell us cars, bed linens, and so on.

That being said, Washington himself is someone for whom all Americans ought to be deeply grateful to Providence, particularly when we look at how the office of Prime Minister or President in other countries can lead to the implementation of policies completely at odds with the will of the people whom they govern.  Cousin George (he is a distant relation) did not make himself a king by setting up an American monarchy and accompanying aristocracy, even though he was certainly popular enough to do so.  Nor did he cling to power once he achieved it, but instead reluctantly served two terms and stepped down, leaving the office to his political successors rather than to his relations.

Yet historically speaking, our Presidents have not always known when to reign themselves in; we see occasions throughout our history when they have become drunk on power and their own opinion of themselves.  One reason why we have two-term limits for Presidents today for example, is because of the inability of President Franklin Delano Roosevelt to cede power.  We are often told that thanks to Roosevelt’s inspiration, America got through the Great Depression and World War II, and no doubt he must be remembered for that service.  Yet we should also be aware that he was incredibly power-hungry, as we learned from his breath-taking attempts to bend the Supreme Court to his will.

In the 1930′s when FDR and his brain trust came up with sweeping legislation to get Americans to work and to create the foundations of the social welfare system, to his fury he found that lawsuits were being brought against some aspects of his plans, challenging their constitutionality.  Upset that conservatives on the Supreme Court were determining aspects of Roosevelt’s “New Deal” to be unconstitutional, Roosevelt attempted to pass legislation that would have allowed him to pack the Supreme Court with his own appointees, in order to pursue his agenda.  You can learn more about this often-forgotten chapter of American history in Jeff Shesol’s fascinating book, “Supreme Power: Franklin Roosevelt vs. The Supreme Court”.

U.S. Supreme Court Justice Louis Brandeis – certainly not the most conservative of jurists – reacted to the news that FDR was going to attempt to manipulate the Supreme Court with the kind of gravitas with which the old look at the impatient, doomed-to-failure plans of those younger and more foolish than themselves.  On February 5, 1937, Roosevelt sent attorney Thomas Corcoran to hand-deliver a press release to Brandeis before the proverbial poo hit the fan, as Shesol describes:

The president has sent me, Corcoran said. He handed Brandeis a press release. If there had been any way to exclude you from the plan, Corcoran continued, the president would have done so; no offense was intended. Brandeis scrutinized the release, was silent for a moment, then looked up. He asked Corcoran to thank the president for the courtesy. But “tell your president,” Brandeis said gravely, “he has made a great mistake. All he had to do was wait a little while. I’m sorry for him.” Corcoran wondered what Brandeis meant by “wait,” but lacked the nerve to ask. With that, Brandeis shook the young man’s hand and passed through the red velvet curtain.

Fortunately for all of us Roosevelt’s plans eventually fell apart, and after he died during his fourth term in office, Americans had the common sense to pass legislation preventing a President from staying in power again for so long, in so doing looking back to the example of Washington for inspiration.

So as we near George Washington’s official birthday celebration, we Americans can still hope that the tension between the Executive, Legislative, and Judicial branches of government will provide at least the possibility for compromise, and also for prevent those in power from riding roughshod over the will of the people.  Unlike in countries such as Britain, France, and Russia, the head of the ruling political party in the United States does not always get his way.  And that, in my view at least, is a very good thing indeed, as no doubt Washington himself would agree.


Detail of “Portrait of George Washington” by Rembrandt Peale (c. 1823)
The White House


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Celebrities Are Not Our Rulers

We are all guilty, at times, of being lazy in our terminology, making statements that upon further analysis cannot possibly be true.  These can take the form of perfectly innocent, if exaggerated, turns of phrase, such as saying that I “hate” chili peppers, when the truth is that of course I cannot possibly hate a plant.  However sometimes these exaggerations provide us with an opportunity to take a step back, question what is being said, and further question the person who is making such an exaggeration as to whether they are worthy of our time, attention, and trust.

Yesterday for example, I read a newspaper article reporting that actors Brad Pitt and Angelina Jolie are now engaged to be married.  The article quoted a Hollywood gossip columnist, who breathlessly declared that this wedding was going to be a “state occasion”, the equivalent of the marriage of Prince William to Kate Middleton last year in the UK.  While it is plainly obvious that this is not the case, it is worth taking apart this rather idiotic observation to see what we can learn from it.

A marriage between two movie stars, however glamorous they may be, is not a state occasion.  This is an incontrovertible fact, for the simple reason that they are not sitting heads of state, nor the offspring of sitting heads of state who are themselves in line to rule someday.  Referring to the impending nuptials of entertainers as a “state occasion” betrays either a profound ignorance of what exactly a “state occasion” is, or demonstrates an intellectual and social laziness that should be corrected.  It is similar to the way that the press often refers to a popular starlet as a “princess”, when in truth she looks more like a member of another profession which starts with the same letter.

The hyperbolic ignorance of much of the so-called mainstream media when it comes to anything beyond a basic reporting of facts, and sometimes not even then, would be laughable if it did not so often cheapen us all.  Anyone who is a fellow Catholic for example, knows how appallingly bad the coverage of the death of Pope John Paul II and the election of Pope Benedict XVI was on virtually every news network.  It became clear very early on that most of the reporters covering the news, as well as the commentators called to share their opinions about what was taking place, had absolutely no idea what they were talking about.

A “state occasion” is something far more important than a social event, such as a wedding between two celebrities, and even if the wedding is a state occasion, whether in the case of last year’s royal wedding, or that of Prince Ranier and Grace Kelly, and so on.  It has to do with both the present personification and the future preservation of a country, in a way which has legal, political and diplomatic importance.  It is understandable that among people who do not remember their history or civics classes in high school that there may be some forgetfulness as to what various terms having to do with forms of government actually mean.  However the press, which holds itself out to be so much better-educated and sophisticated than most mere mortals, ought to avoid making or repeating pronouncements which not only betray ignorance, but provide a false impression to the public.

There is no question that we have always had a kind of organic aristocracy in this country, such as the Virginia planter families in the 17th and 18th centuries, or the New York robber barons in the 19th and early 20th.  However, these are not titled people who are always going to be entitled to some deference because of who their ancestors are.  Otherwise journalist Anderson Cooper, who is a Vanderbilt, would not be interviewing cast members from “The Real Housewives” train wrecks.  Yet these people are not heads of state, simply because they are well-known, or wealthy, or what have you.

The head of state serves as the visible representative of a country, whatever form its government happens to take, and exercises functions on behalf of that country.  While something of a generalization, admittedly, for the purpose of a brief blog post, there is a symbolic importance to the actions of a head of state as acting on behalf of all of the people.  Remember that unlike in the Mother Country, in the United States we do not separate the functions of head of state and head of the government.  In this country, the President of the United States serves both functions; in Britain, the Queen and the Prime Minister have different responsibilities.

In Britain, Prince William is the grandson of the present head of state, and will someday be the head of state himself, according to the laws of that country. His wedding was, therefore, a state occasion.  Mr. Pitt and Ms. Jolie may be interesting, even powerful people, but they do not represent the United States in any official, constitutional capacity  - and thank goodness for that, if it is not too misanthropic of me to say so.  While it may appear something of a tempest in a teapot to get worked up about the marriage of “Brangelina” – [shudder] – being referred to as a “state occasion”, the truth is that these things do matter.  When we bandy about words in a casual fashion, we not only cheapen the language as a whole, but we also cheapen the meaning of those specific words we are using incorrectly, as well.

What is particularly interesting about the characterization of the Pitt-Jolie nuptials, innocent as such a characterization may ultimately be, as something approaching the dynastic and legal significance of a British royal wedding, is what it tells us about ourselves.  It displays a rather disturbing attitude toward celebrity which has already brought us quite low as a culture, and seeks to diminish us even further unless we push back against it.   We should all be happy that, after years of cohabitation, this influential and popular pair has decided to formally tie the knot.  Yet however momentous that occasion is for them and for their family and friends, holding it up as being an event of national importance is but another sign that our society needs to refocus its cultural priorities away from the flashy, and toward the substantial.

“State Opening of Parliament with Queen Victoria” by Joseph Nash (1851)
Houses of Parliament, London


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Freedom of Religion Attacked Again

This weekend, many Catholics who attended mass in their local churches and picked up a copy of the parish bulletin probably read a letter from their local bishop, concerning a recent decision of the Obama Administration to force religious institutions to provide medical coverage for abortifacients, contraceptives, and sterilization.  These procedures and practices run directly counter to the teachings of the Catholic Church, as well as those of many Protestant churches, and also those of other non-Christian faiths.  Following the airing of a few thoughts of my own, I am providing the text of the letter we received from Cardinal Donald Wuerl, our Archbishop here in Washington, D.C., for those who are interested in reading his views on this subject.

Those of my readers who are fellow Catholics, or who are pro-life in their views, are well-aware of why we oppose these things.  However just as large a concern here is the question of religious liberty, which is one of the foundation stones of the American system of government.  Whether or not you agree with the Catholic Church’s firmly-held teachings over the past 2,000 years regarding abortion, contraception, and sterilization, ask yourself whether you are comfortable with the idea that the government has the right to force a religious institution to pay for something that runs directly contrary to its core religious beliefs.

Two weeks ago, in the unanimous decision of the Justices in the Hosanna-Tabor case, the U.S. Supreme Court rejected the Administration’s arguments for interference with religious liberty as being “extreme,” “untenable”, and “remarkable.” Apparently, the Administration has not learned its lesson, and intends to set itself up for a fight on the issue of religious liberty once again. Who knows what else the present government has in store for religious groups, if it cannot even accommodate institutions such as Catholic charitable organizations, who are now going to have to very seriously look into the question of whether they will have to shut down. And by the way, the Catholic Church is the single largest provider of education, social services, and healthcare in the United States after the government, often working in very poor, remote, or dangerous areas where no one else INCLUDING the government will even try to help.

Here is Cardinal Wuerl’s letter, which you can also read by following this link. Please share it with others, as you see fit:

January 26, 2012

Dear Brother Priests,

On January 20, 2012, the United States Department of Health and Human Services with the approval of President Barack Obama issued a new federal mandate making coverage of abortifacient drugs, sterilization and all FDA-approved contraceptives obligatory for virtually all employers, including faith-based institutions.

What is at the center of the concern of Catholic bishops and others about this action by the Obama administration? How can it affect the institutions of the Archdiocese of Washington?

The new mandate is the first federal regulation in our nation’s history to require all faith-based institutions to pay for coverage of abortifacient drugs, sterilization and contraceptives. People were already free to use such widely available products and procedures. Up until this mandate, employers could choose whether or not to cover them and individuals could choose whether or not to seek employers that pay for them. Now nearly all those who provide insurance must include abortifacients, sterilization and contraceptives. Virtually all Catholic institutions and individuals will have to pay for that coverage. Being forced to provide these services violates both our faith conviction and our freedom.

In upholding the HHS regulation, the administration has ignored the First Amendment to the Constitution of the United States and has denied Catholics the most fundamental freedom, religious liberty. Despite the Church’s appeal for a broader religious exemption, which was echoed by many other faiths, the administration refused to modify the regulation’s current exemption that is limited to religious groups that hire and serve people primarily of their own faith. Most churches and church-run institutions do not qualify for the exemption because of their very openness to serving the common good of society and all people regardless of creed.

Even those who may disagree with the Church’s teaching on the sanctity of human life, such as the editorial boards of The Washington Post and the New York Daily News, have stated that the government has no business forcing religious institutions to sponsor and pay for procedures and drugs which violate their beliefs.

What will happen if this mandate stands? Our schools, hospitals and charitable organizations will be placed in the untenable position of choosing between violating civil law and abandoning our religious beliefs.

For example, the mandate will allow a Catholic school one of three options: 1) violate its beliefs by providing coverage for medications and procedures we believe are immoral, 2) cease providing insurance coverage for all of its employees and face ongoing and ultimately ruinous fines, or 3) attempt to qualify for the exemption by hiring and serving only Catholics.

A Catholic school simply cannot effectively teach Catholic doctrine while providing insurance to its teachers – and in the case of Catholic universities, to its students as well – that violates its own beliefs. Nor should it have to deny its employees access to affordable health care, a basic human right. Nor could it afford to pay crippling fines. Nor should it be forced to close its doors to non-Catholics.

There can no longer be any doubt that religious liberty in our country is in jeopardy. Only weeks ago, the Obama administration unsuccessfully argued to the Supreme Court that the government has the right to interfere in a church’s choice of its ministers. Thankfully, the Court unanimously rejected this radical position. Undeterred, the government has advanced on another front.

Catholics across America are already fighting this mandate. Catholic journalists of all backgrounds have widely criticized the HHS rules as unjust, and leaders of major Catholic organizations — such as the Catholic Health Association, Catholic Relief Services, and Catholic Charities USA — have also spoken out against them. In the meantime, the Bishops’ Ad Hoc Committee for Religious Liberty is actively exploring options for litigation and legislative proposals to remedy this injustice.

I hope you will bring this information to the attention of your parishioners and encourage them to pray that justice will prevail and religious liberty may be restored. You may wish to include a bulletin announcement or information on your parish website recommending that parishioners visit http://www.usccb.org/conscience and http://www.mdcathcon.org for details about the new federal mandate and how to contact Congress to support legislation that would reverse the administration’s decision. Please consider calling attention to this issue and all of these resources as soon as possible.

With gratitude for your collaboration in this very important matter and with every good wish, I am

Faithfully in Christ,
Donald Cardinal Wuerl
Archbishop of Washington

Cardinal Wuerl at St. Matthew’s Cathedral in Washington, D.C.


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Review: “Prohibition”

Having now seen all three segments of Ken Burns’ latest documentary, “Prohibition”, which concluded last evening on PBS, I have the chance to share some of my thoughts about the film, with those among my readers who give some passing deference to my opinions on such matters (a fact which continues to astonish me no end.)  In the case of this particular film, Mr. Burns not only captured my interest in a subject which, like many Americans, I thought I already understood, but he also opened up new areas of inquiry for me to examine now that the film is over.  And because of this, I have to tip my hat to him and his team for producing a piece that was not only educational and entertaining, but which will have legs long after the memories of specific moments in it have faded away.

I suspect that most of my American readers, when it came time to study the Prohibition era in American history class in secondary school, focused more on some of the easier questions and answers about this period, and had more interest in its cultural aspects.  We looked at the Temperance movement and women’s suffrage, the miseries of crowded slums and rapid industrialization, and thought that we understood from a sociological perspective how Prohibition came to be.  We then topped off that very general knowledge with a smattering of information about characters such as Al Capone, F. Scott Fitzgerald, Warren Harding, and Duke Ellington, and believed that we “got” that time period.

Prohibition turns out to have been a far more complicated story than what Sister led me to believe, pressed for time as she was with lesson plans which insisted she get us at least to the Vietnam era by the end of the academic year.  For example, from a purely practical perspective, Prohibition would not have been possible without the creation of an alternative dedicated revenue stream.  For many years prior to the passage of the Volstead Act, enshrined as the 18th Amendment, a gigantic amount of government revenue came from taxes levied on the production and sale of alcohol.  It was, in effect, a sort of cash cow of sin, which the government could milk whenever it needed, somewhat like state and local governments do with the tobacco industry today.

President Abraham Lincoln, who actually sold alcohol himself when he was a shopkeeper, turned to taxation on alcohol in 1862 and again in 1864 to help pay for the costs of the Civil War.  When we consider not only the enormous quantities of alcohol people drank in that era, from breakfast through dinner, due to the lack of a clean water supply, but also that in many cases alcohol was the only medicine available to use as a pain killer for huge numbers of men wounded in the fighting, this amounted to a very large sum, indeed.  This was also an era when distilleries, brewers, saloons, taverns, and so on were ubiquitous, in what from the film’s images and descriptions show to be infinitely greater numbers than exist today, when zoning regulations keep both the production and sale of alcohol under strict geographic control.

When the 16th Amendment to the Constitution was ratified in 1913, giving Congress the power to levy individual income tax across the country without using apportionment to “spread the pain”, as it were, the revenues collected from alcohol were no longer an issue.  Bureaucrats could no longer stress to temperance lobbyists the importance of that particular area of taxation as being the single largest funder of government programs: a kind of Sword of Damocles hanging over the Republic which must never be interfered with.  The combination of this change in the law along with other factors – World War I, direct election of U.S. Senators via the 17th Amendment, and so on – are all part of the mechanism that kept the temperance movement rolling like a juggernaut towards Prohibition.

Yet far deeper than the legal practicalities and policy factors which led to the implementation of Prohibition, the ugly truth behind the movement is that it was inextricably tied up with Anti-Catholicism, something of which I was only dimly aware before this film.  It surprises me that the nuns in my private school did not make me more aware of this fact when we studied the Prohibition era, but then perhaps they thought my classmates and I too young to understand a world in which we could be discriminated against for being a Catholic. Mr. Burns’ film has to tell many stories of course, and so he cannot focus exclusively on what we might call the “Catholic angle” of the story.  However, given that I am a proud practitioner of popery, allow me to point out that Prohibition would never have happened but for an enormous and vocal group of Protestant Evangelicals, who outright hated Catholics, as well as anyone who was not of Anglo-Saxon descent.

This is not a pleasant thing to say, of course, but then many truths in history are unpleasant. The documentary clearly shows how a real loathing and mistrust of Catholic immigrants, not only for their religious practices but also because their attitudes towards the use of alcohol, completely took hold of the white Protestant Low-Church wing of the National psyche. If you were a fervent Baptist in 1898 America and saw your new German or Italian neighbors celebrating the First Communion of their child in the front parlor, with a big family party full of strange music and plenty of beer and wine, you probably felt as though the world was coming to an end – or that at the very least that the arrival of the Antichrist was getting closer.

As time went on following the implementation of Prohibition, things did not improve. For example, the anti-Catholic, racist Protestant Evangelist Bob Jones, Sr., founder of the university which bears his name, told the Associated Press during the Presidential Campaign of 1928: “I would rather see a saloon on every corner than a Catholic in the White House. I would rather see a n—— as president.” This was in response to the Presidential campaign of former New York Governor Al Smith, a Catholic and an outspoken challenger of Prohibition. A great irony of history, as Mr. Burns points out in the film, is that one of Governor Smith’s most vocal opponents, a prominent U.S. government prosecutor of Prohibition scofflaws who spoke at a convention of Protestant ministers and, as described in the film, appeared to be calling for religious warfare against Catholics, eventually became disillusioned with Prohibition and converted to Catholicism herself.

Such stories as these are woven throughout the film, enough so to make everyone in the audience feel a bit uncomfortable about what their ancestors did, regardless of their religion, politics, or ethnic background. It is an enthralling tale, well-told, which provides the viewer who has an interest in American history, law, and culture with an infinite number of avenues for subsequent exploration. Some of the stories told by Mr. Burns in the film have become lodged in my brain, and will lead me to read and explore more about the people and themes which he treated in this documentary. In the end, perhaps this is the best indicator of the value of his work, and why you should see it: you will come away wanting to know more.

“Speakeasy, New York City” by Margaret Bourke-White (1933)

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On The Framers and The Constitution

While it is not a holiday which many of us pay much attention to – perhaps in part because it is a newer holiday and not one on which we get the day off – this country just marked Constitution Day, commemorating the signing of the United States Constitution on September 17, 1787. The fact that we continue to care about what men like George Washington, James Madison, and others did on that date, and what they thought about how the rule of law should operate in this country, is something quite unusual. Perhaps we do not stop to think about that fact as often as we should, for it is a great strength of our legal system.

Tonight at the Tocqueville Forum at Georgetown, two scholars will be revisiting the enactment debate that went on in Congress between the Federalists and the Anti-Federalists in implementing the Constitution as the truly foundational legal document of the Republic. Yes, there are other documents of tremendous importance in the shaping of this country, but the Constitution is the one which allows us to function, rather than merely exist in the abstract. So I, for one, am looking forward to seeing the virtual wig powder fly across Copley Formal Lounge this evening, with tankards of ale to follow at some local hostelry.

If you have any interest in the law, you know that very often in Constitutional Law cases decided by the U.S. Supreme Court, one of the key considerations taken into account by the Justices is the intent of the Framers of the Constitution. From there things get a bit muddled, with respect to interpretation, into what can often seem very confusing, umbrella terms – strict constructionists, originalists, judicial activists, textualists, etc. That being said, any Supreme Court Justice must at the very least consider the Framers, even if only to ultimately reject their positions, when they act.

While our common law system is, in part, descended from that of the cousins on the other side of the pond, for some time now we have been moving in different legal directions, as the UK increasingly abandons British precedent in favor of European novelty.  After all, it is not as though the English continue to look back to the Magna Carta and debate about the intent of the barons at the fields of Runnymede.  Admittedly, this is an over-simplification, but sadly not much of one. In this country, fortunately, for the present we have in the main resisted giving in en masse to international committees drafting our laws for us, at least at the highest level of judicial inquiry.

When we ask the larger questions that crop up in our courts, we do not find it strange – indeed, we find it important – to take into consideration what men who have been dead for hundreds of years might have to say about the matter. Perhaps only in the Catholic Church do we find a contemporary parallel with respect to the high degree of deference paid not just to precedent, but to the debates, discussions, and writings of long-gone figures. It is ironic that the signers of the U.S. Constitution, nearly all of whom were Protestants who presumably would have rejected the embodiment of Church tradition in the Magisterium, created a system of laws whereby both text and tradition would be considered in weighty matters.

This is not to say that the Framers of the Constitution ought to be viewed as secular saints. One need only look at the 3/5 compromise put into the Constitution in 1787, which allowed the South to count slaves as part of their population for the purpose of proportional representation in Congress, to realize that this is the case. No human document is flawless, any more than are those who composed said document, because humans are, themselves, flawed beings, capable of independently or collectively tolerating, sanctioning, or participating in evil actions.

Even with that being the case, we are fortunate in this country not only to respect the rule of law, but also to respect those who originally composed our laws, even when they are no longer available for us to consult in person on important questions which arise in our democracy. It is no accident that many elements of the U.S. Constitution have been copied by countries around the world, for it has proven to be a wonderfully resilient document over the past two centuries. Yet the opinions and writings of those thoughtful men who set themselves to the original composition of our Constitution continue to be an important wellspring of thought about that document, down to the present day, and our country is all the better for making a point of looking to such sources when questions involving our foundational document arise.

Entrance to Copley Hall, Georgetown University

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