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The HHS Mandate Question
A year and a half ago, I posted some preliminary thoughts on the viability of the HHS mandate that was the subject of oral argument at the Supreme Court this past Tuesday. Three months before the case will be decided by the Court, it’s fair to say that the same legal issues continue to swirl around and divergent views abound.
Having witnessed the arguments first hand, the following are my impressions on where the case is headed:
1. The Court seems skeptical of the government’s claim that for-profit corporations, by definition, cannot “exercise” religion.
As Solicitor General Verrilli conceded, there is nothing in the corporate form, per se, that inhibits the exercise of religion. After all, churches and other religious organizations, granted exemption or accommodation by the government, share the corporate form and undeniably “exercise” religion. The issue is whether for-profit status, i.e. entering the marketplace to earn money as entity, bar religious expression. Somewhat surprisingly given expectations pre-argument, Justice Breyer raised a few eyebrows when he asked Verrilli about the local, kosher deli that nearly everyone is familiar with in their neighborhood. The government had a hard time distinguishing why the deli manager who incorporates all of sudden loses free exercise rights that he or she would otherwise possess if he or she chose to not take advantage of corporate protections under state law. After all, isn’t it bizarre to suggest that availing one’s business of state law protection inhibits exercise of a federal right? Given that both Justice Breyer and Justice Kennedy seemed skeptical of the logic of the government’s position regarding for-profit corporations, and the common sense statutory arguments under the Religious Freedom Restoration Act (RFRA), it appears likely that the corporate petitioners will clear the first hurdle.
2. The suggestion that Hobby Lobby and Conestoga Wood could avoid the substantial burden by refraining from offering health care insurance misunderstands the Court’s jurisprudence regarding the definition of substantial burden.
The Court has made clear that courts should give broad latitude to plaintiffs claiming that they are substantially burdened by a law or government practice. Therefore, how the petitioners frame the burden is of utmost importance and should be given extensive deference. This is to avoid the so-called judicial entanglement problem when it comes to adjudicating religious liberty disputes. If the court probes too far into the legitimacy or credibility of the substantial burden, it may run the risk of engaging in theology, which is not its province. Because nobody questions the sincerity of the petitioners, this threshold is easier for the petitioners to meet than the staunchest supporters of the mandate would have others believe.
One other notable point regarding the substantial burden portion of strict scrutiny is the focus on making the burden “cost-neutral.” Even if Justice Kennedy was correct and the decision to offer insurance or pay the penalty was a “wash” (which it is not), the Court must still consider and account for the moral burden put forth by the plaintiff. And because courts are required to give deference to this aspect of the calculation, this question of whether a substantial burden exists is likely to be answered in the affirmative.
3. The government faces an uphill battle when it comes to arguing for a compelling interest and that the regulation is the least restrictive means for pursuing that interest.
a. Compelling Interest
1. As Justice Kennedy suggested when asking about the amount of delegation given to HHS, if the compelling interest was so strong, why would Congress leave the details to an agency to define who is exempt?
2. As Justice Alito suggested, HHS considers itself capable of granting for-profit corporations exemption from the regulation. How can the interest be compelling if the agency considers how to pursue it an open-ended question?
3. The third-party burdens argument is tautological because, after all, the case is about whether the free exercise clause and RFRA require reallocation of burdens. In other words, the government cannot say that the third-party burdens felt by employees supports the idea that the regulation promotes a compelling interest. Otherwise the government would always win under strict scrutiny because strict scrutiny asks whether third party burdens must be felt given other constitutional commitments. Further, the Court is tasked with answering this precise question: whether statutory rights can amount to a compelling interest in this context. The mere existence of those statutory rights, as granted by the agency, cannot itself answer that question. Finally, this certainly would not be the first context in which third parties feel the weight of burdens given other constitutional commitments.
4. The HHS regulations at issue allowed for delayed compliance with the contraceptive mandate. How compelling could the interest be if time was not of essence?
5. The government’s position regarding how the corporations could avoid the substantial burden, i.e. dropping coverage and paying the fine, undermines its very argument that the interest is compelling. Why would the government say it is ok to not comply with the law if the law is really that important? Isn’t the government’s goal to truly make the services available to the employees through their employers?
b. Least Restrictive Means
If the government’s goal is not as specific as described in number five above, and is instead availability of the contraceptive methods by any way possible, why did it force employers to provide the services through existing employer health insurance? There are other ways that the government could have achieved its goal: direct subsidies to the employees, tax credits, or stipends. In other words, the government arguably could have achieved its stated goal in much easier fashion: by paying for it itself.
4. The decision will be 6-3 or 5-4, depending on how Justice Breyer votes.
I foresee a narrow decision that strikes down the mandate because it fails strict scrutiny, as outlined by RFRA. The Court will not answer the question of whether the Free Exercise Clause covers for-profit corporations and instead will decide the case under RFRA, and hint to Congress that it must clearly define the meaning of “person” if it wishes to narrow the decision of the Court. Any distinction between closely-held and publicly-held corporations will be saved for another day or act of Congress. The decision also will hint that its rule does not extend beyond the facts before the Court given the outstanding issues. Finally, this will not be the last case regarding this issue that comes before the Court.
Benedict’s Decision, Revisited
Back in February, I shared my thoughts on how then Pope Benedict’s decision to leave the Papacy would reflect what I labeled Petrine genius in hindsight:
Truth be told, is it possible that Benedict’s greatest contribution to the new evangelization, one of the main objectives of his tenure, will be his decision to personally withdraw from evangelizing by recognizing that the good of the Church requires a new leader? Is it possible that he has returned the story of the Papacy to the simple, yet magnificent and incredible story of the tarnished St. Peter, who as a fisherman who followed the fisher of men is someone we can all relate to in his failings and also his hope?
Nearly six months after the election of Francis, I can’t help but feel like the new Pope has met the hopes of so many, including the expectations written in the last question. If there is one common thread in the commentary surrounding the new Pope, it is that he has wowed the world with his focus on humility and service as the truest aspects of the Church’s mission. Although his inspiration may come from his namesake, he has managed to express the power of humility.
G.K. Chesterton’s Gospel of Wonder
G.K. Chesterton is widely known as the master of paradox, amongst other things. The “Apostle of Common Sense,” who spent his first years as a journalist cataloguing the social ills plaguing England and debating ardent scientific materialists such as H.G. Wells and George Bernard Shaw, ultimately converted to Catholicism and proudly proclaimed that all roads lead to Rome. Christian apologetics–with a specifically Catholic bent–dominated the projects of his later years. Chesterton’s formal conversion, which did not occur until after he had formulated the most basic elements of his philosophy, including wonder, limitation, and common sense, amplified those primary principles as he sought to justify his intellectual fervor for the Church’s teaching.
The rotund Englishman’s fascination with wonder–itself expressing the principle–was at its core a robust appreciation for the magnificence inherent in the sheer fact of existence. Only when human beings meditate on the precise nature of existence itself, including their own existence as a cosmological miracle, can they fully appreciate and make sense of the uniqueness of the human story. For Chesterton, this human wonder made sense of Christ’s words in the Gospel to the apostles: “Amen, I say to you, unless you turn and become like children,you will not enter the kingdom of heaven. Whoever humbles himself like this child is the greatest in the kingdom of heaven.” For Chesterton, wonder is childlike; in this sense, it contributes to humility, the prime virtue of Christianity in his eyes.
Chesterton’s explication of the philosophy of wonder was a lifelong project that existed at the time he began his career as a journalist. His inclination to expound the idea–while not initially inspired by Christianity–naturally led him to the road of conversion. Tracing the development of this idea is essential to understanding Chesterton’s apologetics.
Chesterton admitted in his Autobiography that his principle of wonder was his first foray onto the road toward conversion. As a young journalist, he realized that “mere existence…was exciting. Anything was magnificent compared with nothing.” In his poem “The Babe Unborn,” Chesterton illustrates the unborn child crying out for existence and thirsting to experience life. Chesterton’s fervor and passion for the ordinary aspects of existence, or what the moderns would classify as such, comports with this sentiment. These realizations led to sort of gratitude, a type of thankfulness for which Chesterton could not fully comprehend in his early days as a writer. But he had started his long journey home, because gratitude implied thanking someone.
His philosophy of wonder was personal rather than purely abstract. He constantly relates it to human experience, reminding his readers that wonder is a motif, conscious or not:
One of the profound philosophical truths which are almost confined to infants is this love of things, not for their use or origin, but for their own inherent characteristics, the child’s love of the toughness of wood, the wetness of water, the magnificent soapiness of soap.
Like children, adults need to view the world through the prism of the unlikelihood of existence. Unfortunately they become bored by focusing, ironically, on less simple things. But grasping the basic reality of things results in right relation to the world and decentralizes one’s initial feelings that the world revolves around oneself. And this leads to an incredible sense of appreciation for existence:
To the humble man, and to humble man alone, the sun is really a sun…the sea is really a sea. When he looks at all the faces in the street, he does not only realize that men are alive, he realizes with a dramatic pleasure that they are not dead.
This realization that life is a romance beyond our control (containing limitations created by Another)–a story if you will–forms the foundation for the first part of Chesterton’s masterpiece, The Everlasting Man.
Interestingly, several years before Chesterton formally committed to the Catholic creed, he authored one of his most well-known works: Orthodoxy. The task at hand was solving the riddles that pervades human experience. Chesterton’s answer: Christian theology.
Christianity responds to the human need for the ordinary and extraordinary in everyday living. We all want romance in our lives; the light of faith provides it. Adventure, poetry, imagination, and picturesque living stem from the natural human curiosity for “the combination of something that is strange with something that is secure.” As Ian Ker concludes in his masterful biography of Chesterton, “Chesterton’s starting point is the need for wonder at the world with which we are familiar.” And in Chesterton’s words himself: “We need to be happy in this wonderland without once being comfortable.”
Chesterton continues his reflection by contrasting this approach with that of materialism, which favors the simplistic and therefore impliedly manages to “leav[e] everything out.” The materialist and determinist leave no room for liberty, or more theologically, free will, whereas theology classifies paradoxes like free will as one of many sacred mysteries.
The seeds of Chesterton’s belief in orthodox Christianity were already present as the faith’s accounting of paradox met his natural curiosity and wonder, all while offering something stable:
[T]he cross, though it has at its heart a collision and a contradiction, can extend its four arms for ever without altering its shape. Because it has a paradox in its centre it can grow without changing…. The cross opens its arms to the four winds; it is a signpost for free travellers.
But theological reflection is not the only source of wonder for Chesterton. Fairy tales showed that the world was wild too, and the magical world implied a magician, or a person. Or as foreshadowing to The Everlasting Man, a story implies a storyteller:
Christianity was ‘the answer to the riddle.’ It taught that God in ‘making’ the world ‘set it free. God had written not so much a poem, but rather a play; a play he had planned as perfect, but which had necessarily been left to human actors and stage-managers, who had since made a great mess out of it.’ The ‘riddle’ was how could one ‘somehow find a way of loving the world without trusting it.’ The answer was the ‘dogmatic insistence that God was personal, and had made a world separate from him.’ Christian optimism was ‘based on the fact that we do not fit in to the world’ and ‘dwelt on the unnaturalness of everything in the light of the supernatural.’ Having understood that he was ‘in the wrong place,’ Chesterton’s ‘soul sang for joy, like a bird in spring.’
For Chesterton, wonder indicates magic, magic indicates meaning, meaning implies purpose, purpose leads to the intentions of a person, a person behind it all requires gratitude, and gratitude begets humility.
Catholics that have been excited about the beginning of Pope Francis’ papacy, especially his emphasis on humility and the poor, would do well to read Chesterton’s thoughts on the Pope’s namesake. Contemporaries of Chesterton lauded his biography, Saint Francis of Assisi; themselves biographers of the man, many considered the book to be the best work on the saint. Best, not due to historical accuracy, but rather due to Chesterton’s magnificent storytelling ability to explain Francis’ life in common sense. In other words, he brought the saint to life in an age when God was supposedly dead.
Saint Francis’ life was full of praise for existing things (creation). Popularly known as a friend of animals, Chesterton is quick to point out that the friar from Assisi was not a nature-worshipper. Rather, it was Saint Francis’ gratitude for existence that motivated every aspect of his life. Francis, recognizing his absolute contingency on the mercy of God, personifies the paradox that “the man who really knows he cannot pay his debt will be for ever paying it.” And so, romance reigned in his life. Yet Saint Francis’ romantic personality remained tempered by reason, thereby fitting perfectly into Chesterton’s “apologetic” synthesis of the story and philosophy in the person of Christ. As Ker writes, the saint “always hung on to reason,” and a form of reason cognizant of humor, which for Chesterton, is only additional evidence of humility.
Saint Francis also transformed his deep gratitude for existence into love of others. As such, the saint exemplifies the transformation of wonder-inspired humility into transcendent love. As Chesterton writes, Saint Francis’ relationship to Christianity was a “love-affair.” This attachment was beyond feeling and motivated all of his relationships:
What gave him his extraordinary personal power was this; that from the Pope to the beggar, from the sultan of Syria in his pavilion to the ragged robbers crawling out of the wood, there was never a man who looked into those brown burning eyes without being certain that Francis Bernadone was really interested in him: in his own inner individual life from the cradle to the grave; that he himself was being valued and taken seriously, and not merely added to the spoils of some social policy or the names in some clerical document.
Yet Chesterton’s fascination with Saint Francis bookends his commitment to Saint Thomas Aquinas, who by devoting his life to the abstract knowledge of all things, managed to evince the type of wonder that Chesterton sympathized with since his younger days. Aquinas, later known as the Angelic Doctor, “recognised a real quality in things; and afterwards resisted all the disintegrating doubts arising from the nature of those things.” In other words, he did not let the childlike nature of his wonder interfere with his understanding as an adult.
We’ve arrived at what this author considers Chesterton’s greatest work: The Everlasting Man. The book communicates Chestertonian philosophy at its finest, emphasizing his unique apologetic method of “invok[ing]…the imagination that can see what is there.” In response to the religious skeptics of his day, Chesterton sought “to recover the candor and wonder of the child; the unspoilt realism and objectivity of the innocence.” The project is simple:
To help the reader to see Christendom from the outside in the sense of seeing it as a whole, against the background of other historic things; just as I desire him to see humanity as a whole against the background of natural things.
As Ker points out, this vantage point ultimately leads Chesterton to the conclusion that Christianity and humanity are themselves, supernatural things.
The Everlasting Man comes in two parts. First, Chesterton discusses the history of man, with an emphasis on the “story.” His first observation is all too obvious yet consistently forgotten in the age of scientific obsession: that man “is a very strange being in the sense of being a stranger on earth.” Perhaps sensing this, most men eventually realize that something is quite wrong with the species. And hence, for Chesterton, arrives the truth of original sin. From the Fall came misunderstanding and mistaken perceptions regarding the divine and reality. Corrupted monotheism led to paganism, which amplified the imaginative aspects of religion at the expense of the rational. In short, religion (mythology) and reason (philosophy) were on separate tracks. The romantic part of the soul was divided against the rational part: “they certainly did not work together; if anything the philosopher was a rival of the priest.”
What bridges this divide? Chesterton attempts to show the bare core of Christianity, pointing to Christ as the synthesis in his person. Jesus is simultaneously the storyteller (God) and the philosopher. As the Gospel of John states, “In the beginning was the Word, and the Word was with God, and the Word was God.” And as Jesus himself stated, it was the law that he came to “fulfill.” Christ is simultaneously the author and the truth.
How does this relate to Chesterton’s Gospel of Wonder? It correlates perfectly to the strangeness that characterizes human existence. First, it responds to the “human instinct for heaven,” the eternal hope for something better, and the need for romance “pursued by all poets and pagans making myths.” Second, it offers a comprehensive philosophy through the teachings of Christ, especially when fused with the best of human knowledge. Lastly, Christ, because he is simultaneously God and a person, challenges every soul.
The last point deserves some elaboration. Think of the expression on someone’s face when they are in awe. That emotion probably rivals what many felt as Christ said and did the things that appear in the Gospels. According to Chesterton, the modern, dare-we-say Jeffersonian, attachment to Jesus as a “great moral teacher” is only part of the story, and a very small one at that. Even churches have fallen subject to this masking of the real Jesus:
The figure in the Gospels does indeed utter in words of almost heart-breaking beauty his pity for our broken hearts. But they are very far from being the only sort of words that he utters…. The popular imagery is inspired by a perfectly sound popular instinct…. In any case there is something appalling, something that makes the blood run cold, in the idea of having a statue of Christ in wrath.
Aside from the merciful Jesus, the Gospels also contain the enigmatic Christ, “full of sudden gestures” and “outbreaks of wrath.” The Christ of the Gospels is “strange.” It is the Church that injects the rational accessibility for the everyday person.
But who is Christ to Chesterton? He is precisely who he said he was: “Before Abraham was, I am.” Christ’s strangeness, announced throughout the Gospels as he self-proclaimed his divinity, meets eternal truth. And so philosophy and mysticism come together. Pilate, representing the most successful empire in the history of the world at that point, could only ask, “What is truth?”
Thus, Chesterton concludes that Christianity is the truth because it synthesizes natural human curiosity, expressed through wonder, and common sense philosophy. The Christian creed reconciles philosophy and romance by being neither entirely; rather, it “is the philosophy of stories,” namely History. Every individual’s Christian path contains a narrative, ample adventure due to the persistent frustrations of original sin throughout life, and significant room for the liberty that all of us cherish and that is a prerequisite for true love. Christianity fuses the rational with romance, because the story of Christ “met the mythological search for romance by being a story and the philosophical search for truth by being a true story,” in which “the ideal figure” became the “historical figure.”
One of Chesterton’s finest metaphors came when he compared the Christian creed to a key, especially when one considers Christ’s words to Saint Peter. First, all keys, and specifically the Christian key, has a shape. Unlike malleable modern philosophies, it is not characterized by shapelessness and does not change its shape based on the popular mood. Second, keys either fit or they do not. Finally, the key is unique and only opens one door. For Chesterton, the inherent complexity in a key mirrors Christian theology, which seeks to account for the variety in human experience and the wonderful magnificence of all of existence. Christianity answers the riddle of human experience. As Ker writes: “The [Christian] creed was complicated because the problem with the world was ‘a complicated problem.’ Although it did seem ‘complex’ like the key, there was ‘one thing about it that was simple. It opened the door.’”
 Orthodoxy, 286-87.
 The Gospel of Matthew, 18:3.
 Twelve Types, 191.
 Chesterton writes: “A child kicks his legs rhythmically through excess, not absence, of life. They always say, ‘Do it again’; and the grown-up person does it again until he is nearly dead. For grown-up people are not strong enough to exult in monotony. But perhaps God is strong enough to exult in monotony. It is possible that God says every morning, ‘Do it again’ to the sun; and every evening, ‘Do it again’ to the moon…The repetition in Nature may not be a mere recurrence; it may be a theatrical encore.” Orthodoxy, 108.
 For Chesterton, “the ultimate psychological truth, the foundation of Christianity, is that no man is a hero to himself.” Heretics, 54.
 Heretics, 127-28.
 “The thing which keeps life romantic…is the existence of these great plain limitations which force all of us to meet the things we do not like or expect.” Birth is to be “born into uncongenial surroundings, hence to be born into a romance,” because “in order that life should be a story or romance to us, it is necessary that a great part of it, any rate, should be settled for us without our permission.” Heretics, 141-45.
 Interestingly, Pope Francis expresses a similar point in his recent encyclical, Lumen Fidei.
 Orthodoxy, 16.
 Ian Ker, G.K. Chesterton: A Biography, 214.
 Orthodoxy, 212-13.
 For Chesterton, radical materialism “makes the theory of causation quite clear.” Unfortunately, it leaves its proponents unable to rationally say “please pass the mustard” to the “determined” friend at dinner.
 Orthodoxy, 217-31.
 Ker, 219, quoting Orthodoxy 270-83.
 Chesterton, like C.S. Lewis, believed that pride is the worst sin because it “is the falsification of fact, by introduction of self.” Ker, 697.
 Saint Francis of Assisi, 65.
 “[T]he whole point of a friar was that he did not know where he would get his supper. There was always the possibility that he might get no supper. There was an element of what would be called romance, as of the gipsy or adventurer.” Saint Francis of Assisi, 89-97.
 Chesterton elaborates on this idea, i.e. the universality of the Church, when he discusses how the Church finds room for both Thomas Aquinas and Francis of Assisi. While on the surface they appear strikingly different, “both reaffirmed the Incarnation, by bringing God back to earth.” Saint Thomas Aquinas, 8.
 Ker, 505.
 Saint Francis of Assisi, 80.
 Saint Thomas Aquinas, 115.
 Aquinas was “unmistakably thinking about things and not being misled by the indirect influence of words.” Ker, 688. Aquinas did not become bogged down by the modern metaphysical project that doubts the possibility of correspondence between reality and the senses and mind: “For Thomas did not ‘deal at all with what many now think the main metaphysical question; whether we can prove that the primary act of recognition of any reality is real.’ And that was because he ‘recognised instantly…that a man must either answer that question in the affirmative, or else never answer any question, never ask any question, never even exist intellectually, to answer or to ask.’” Ker, 688 (citing Chesterton’s Saint Thomas Aquinas).
 The Everlasting Man, 12.
 Ker, 517.
 Chesterton writes: “[H]e has much more of the external appearance of one bringing alien habits from another land than of a mere growth of this one. He has an unfair advantage and an unfair disadvantage. He cannot sleep in his own skin; he cannot trust his own instincts. He is at once a creator moving miraculous hands and fingers and a kind of cripple. He is wrapped in artificial bandages called clothes; he is propped on artificial crutches called furniture.” The Everlasting Man, 14.
 The Everlasting Man, 126.
 The Gospel of John, 1:1.
 The Gospel of Matthew, 5:17.
 The Everlasting Man, 126.
 The Gospel of John, 8:58.
 The Gospel of John, 18:38.
 The Everlasting Man, 243-48. Chesterton adds that the reason Christianity will not go away is because it is the only system that can properly be called “news.”
 “‘And so I say to you, you are Peter, and upon this rock I will build my church,and the gates of the netherworld shall not prevail against it. I will give you the keys to the kingdom of heaven. Whatever you bind on earth shall be bound in heaven; and whatever you loose on earth shall be loosed in heaven.’” The Gospel of Matthew, 16:18-19.
 Ker, 526 (emphasis added).
Alasdair MacIntyre, Saint Thomas More, and Political Citizenship
In 2004, during the Kerry-Bush election, respected philosopher Alasdair MacIntyre penned an essay challenging voters to consider not voting for either major-party candidate in an effort to force change into a system that constantly produces less than compelling alternatives. MacIntyre wrote:
Why should we reject both? Not primarily because they give us wrong answers, but because they answer the wrong questions…. We note at this point that we have already broken with both parties and both candidates. Try to promote the pro-life case that we have described within the Democratic Party and you will at best go unheard and at worst be shouted down. Try to advance the case for economic justice as we have described it within the Republican Party and you will be laughed out of court…. Yet at the same time neither party is wholeheartedly committed to the cause of which it is the ostensible defender. Republicans happily endorse pro-choice candidates, when it is to their advantage to do so. Democrats draw back from the demands of economic justice with alacrity, when it is to their advantage to do so. And in both cases rhetorical exaggeration disguises what is lacking in political commitment. In this situation a vote cast is not only a vote for a particular candidate, it is also a vote cast for a system that presents us only with unacceptable alternatives. The way to vote against the system is not to vote.
In other words, mass abstention by voters disenchanted with the options could produce massive change. The message would be that the system’s political products–in the form of incredibly flawed candidates giving lip service to incoherent policy–requires revamping the system entirely so it produces better options. Abstaining from the arena would require the walls of the arena and the terms of the debate to change.
Now, anyone familiar with classical and contemporary philosophy will recognize that MacIntyre comes from the Aristotelian tradition, and in fact devoted his seminal work-After Virtue-to the claim that Aristotelianism remains relevant in contemporary ethical debates. But is MacIntyre’s essay consistent with the religious outgrowth of Aristotelianism, namely Thomistic political philosophy?
One way to answer that question may be to look at someone who many consider to be a wonderful practitioner of Thomistic political philosophy, namely Saint Thomas More. More was a devout Catholic and incredibly skilled lawyer, public servant, judge, and political official who served King Henry VIII until his death. Additionally, More authored Utopia, where he elucidates one of the principles guiding his political philosophy:
Don’t give up the ship in a storm because you cannot direct the winds…. [W]hat you cannot turn to good, you may—to the extent of your powers—make less bad.
These lines demonstrate the tension between serving in a system of imperfect human law while trying to remain the loyal servant of an unearthly yet divine kingdom. More’s life—and death for that matter—personifies the emergence of modern philosophies of law that ultimately prioritized positive law without reference to unwritten norms. The events surrounding his public legal career and his responses to them demonstrate the arduous task of prudently pursuing the common good while remaining true to cardinal principles, assuming one chooses to hold and act on behalf on them. In short, his struggles resemble MacIntyre’s frustration with the choices presented in a fundamentally flawed political system.
But More was undoubtedly “part” of the system in pre-Reformation England. If More was a citizen in the American political system, would he abstain from voting? Or would he attempt to steer the ship towards the lesser of two bad outcomes? Better yet, would steering the ship entail MacIntyre’s strategy or involve participating in voting? While it is not apparent on its face that More and MacIntyre would disagree about MacIntyre’s method, these are complicated questions. At the very least, they require serious reflection on the virtue of prudence and its application to political affairs. That is a discussion that a lot of people probably believe that this country desperately needs only a fortnight before a presidential election. ∞
When Roberts Met Marshall: The Chief Justice’s Marbury Moment
It has been more than a month since the Supreme Court handed down its decision deciding the fate of the Patient Protection and Affordable Care Act, colloquially known as “ObamaCare.” The reaction by pundits was quick and immediate. In some cases, it was too swift. Many conservatives, predisposed to the Republican Party’s agenda, quickly denounced Chief Justice Roberts as a turncoat. One popular conclusion was that the Chief Justice made a political calculation when casting the deciding vote in order to be on the “right” side of history (which undeniably seems to make little sense considering he voted with the four so-called “liberal” justices on the Court). There were many explanations coming from different extremes. All shared similar confidence in their assertions; yet few accounted for the complexity that came with the Court’s decision and Chief Justice Roberts’ majority opinion.
The opinion is probably right along constitutional grounds. The Court correctly responded to the unprecedented argument put forward by the government with respect to the Commerce Clause, and the reasoning saving the mandate as a “tax” is consistent with both precedent and common sense. As one scholar pointed out, if it walks like a duck, talks like a duck, looks like a duck, and quacks like a duck, it probably is a duck. The same holds true for a tax. Given that Congress does not always invoke the specific authority when acting, this reasoning seems correct from the point of view of the Court’s precedent. Further, and perhaps unintentionally, the decision managed to preserve the integrity of the Court in the heat of a vicious presidential election. Finally, as a matter of legal history, it must be acknowledged that Chief Justice Roberts’ majority opinion is a work of institutional genius.
When I first saw the news coverage following the opinion, and after reading the opinion myself, I could not help thinking about what I learned in my first-year constitutional law course while studying Marbury v. Madison. Shockingly, very few, if any, have mentioned the Court’s decision in the context of this crucial moment in early American legal history. In perhaps the most famous Supreme Court decision ever, Chief Justice John Marshall managed to expand the institutional authority of the Supreme Court while providing a victory to another branch of government that many considered to be his (and the Court’s) institutional and political enemy. For those lacking in SCOTUS history courses, Marshall (appointed by Federalist President John Adams) saw an opportunity to expand judicial power for generations by striking down a law [the Judiciary Act of 1789] that expanded judicial power of jurisdiction (seemingly a favorable development for the Court), all while giving a ruling favorable to the Jefferson Administration (the Democratic-Republican party that defeated the Federalists in the previous election). Chief Justice Marshall gave the Court the power of judicial review while reviewing and deciding a case in favor of his political opponent.
The State of Exception and Presidential Character
In 2005, the Italian political philosopher Giorgio Agamben published State of Exception as a response to the theories of Carl Schmitt and what he perceived as the jarring political events and violence taking place after September 11th, 2001. Agamben, a strong critic of former President George W. Bush’s administration, emphasized how the twentieth century saw a dramatic shift in the relationship between the legislative and executive powers in modern Western democracies. In an alarming passage, Agamben wrote:
The voluntary creation of a permanent state of emergency has become one of the essential practices of contemporary states, including so-called democratic ones.
Pointing to post-9/11 developments such as the Patriot Act, the prison at Guantanamo Bay, and the Bush Administration’s legal framework for enemy combatants in the United States, Agamben warned that the United States was coming dangerously close to joining the long list of European democracies that had willingly (albeit perhaps somewhat unconsciously) ceded total sovereignty to government executives.
For Agamben, exceptional circumstances were becoming “the dominant paradigm in contemporary politics,” which cut against the constitutional division of power colloquially known as “checks and balances.” Italy, Germany, France, and England had all suffered already. In America, the separation of powers theoretically protected against abuse. Congress held the purse and the power to declare war; the president executed directives as the president saw fit (within the boundaries of the law). But when exceptional circumstances arose and called for swift and decisive action, the chief positive attribute underlining the division of power, namely deliberation and reason, started to become secondary to the need for decision-making. Sometimes the tendency led to good results, such as in the case of President Lincoln instituting and applying the principle of equality to change the legal framework for the better. At other times, such as President Wilson’s legislative-executive powers during World War I and President Roosevelt’s administration of the economy during the Great Depression, the long-term consequences were more ambiguous (one of Agamben’s main points is that FDR’s presidency provides a perfect example of how once power goes to the executive it rarely comes back; considering how Social Security is considered the “third rail” by conventional political wisdom, he may be right).
Perhaps most importantly, Agamben noted how the case of the United States was most troubling because America remained the pre-eminent democratic republic and continued to be held as the model for newly-forming democracies. In other words, if America was losing its way, hope for the world was all but lost.
Unlike Schmitt, Agamben did not believe that exceptional circumstances, involving extreme peril to the nation, destroyed the prevailing legal norms at the time. Rather, the exception is different from the norm in blurry way:
The state of exception is neither external nor internal to the juridical order, and the problem of defining it concerns precisely a threshold, or a zone of indifference, where inside and outside do not exclude each other but rather blur with each other.
In other words, exceptional circumstances are messy, often immediate and pressing, and require swift action. These issues cause otherwise protected democracies to locate decision-making in one individual, or a less-deliberative decision-making process. It’s also why Agamben recognized the individual as the link between the old norm and the exception:
The sovereign, who can decide on the state of exception, guarantees its anchorage to the juridical order.
But individuals are messy too, with political and personal decisions clouding their better moral and legal judgments in uniquely stressful and dangerous situations. And we all know where that can lead. The conclusion being that who are leaders are matters, a lot, especially in trying times that test the limits of our legal system, because severing the link between the normal legal regime and the exception leads to slippery slopes where moral judgments become very blurry. Which brings us to 2012 and President Obama’s role in the war on terror ten years after 9/11 and significant U.S. military involvement (and investment) in the Middle East.
On May 29th, 2012, the New York Times published a story detailing President Obama’s role as the decider-in-chief when it comes to authorizing stealth attacks on alleged terrorists and terrorist camps all over the world. Some considered the timing of article to be politically suspicious; after all, it was close enough to the anniversary of the announcement of the death of Osama Bin Laden that some complained about the politicization of national security issues.
Yet after careful examination of the article, Americans may find themselves far more concerned with the precedent being set by the current president, especially in light of what was mentioned above. As the article stated:
Mr. Obama has placed himself at the helm of a top secret “nominations” process to designate terrorists for kill or capture, of which the capture part has become largely theoretical…When a rare opportunity for a drone strike at a top terrorist arises — but his family is with him — it is the president who has reserved to himself the final moral calculation.
In short, Mr. Obama decides who lives or dies on the “kill list” that his national security team presents to him. The list contains foreign nationals, enemy combatants, and yes, American citizens (who pose national security threats, as determined by the national security apparatus). And according to a White House memo, the executive branch’s internal (and extra judicial) deliberations surrounding an individual’s placement on the list–and whether his or her life may be taken–amount to due process under the American constitutional system (a notion that, while possibly not legally troubling for non-citizens, raises significant red flags for citizens).
The portrait portrayed Mr. Obama as taking total ownership of this issue and sometimes using the legal skills so lauded by his liberal advocates as the means to enable the very actions that those supporters doubt (such as acquiescing to a formula that minimizes the counting of civilian deaths by counting all military-aged males in a strike zone as enemy combatants). The mechanics of the “judicious” process are equally eye-opening:
It is the strangest of bureaucratic rituals: Every week or so, more than 100 members of the government’s sprawling national security apparatus gather, by secure video teleconference, to pore over terrorist suspects’ biographies and recommend to the president who should be the next to die.
This secret “nominations” process is an invention of the Obama administration, a grim debating society that vets the PowerPoint slides bearing the names, aliases and life stories of suspected members of Al Qaeda’s branch in Yemen or its allies in Somalia’s Shabab militia.
To top it off, the article repeatedly points to lines drawn by Mr. Obama–and then crossed by him at later dates. As Agamben intimated, precedents are dangerous.
To be fair, everything the article presented was not bad and reinforced Agamben’s underlying point about how who decides really matters if the exception is to remain tethered to the prevailing legal system. Mr. Obama seems at least aware of the moral implications, especially when children are involved. And his advisers, including John Brennan, seem to be generally respected as individuals of moral rectitude. But as Agamben mentions, what if the president did not recognize the moral and juridical implications but simply relied on the precedent to justify his or her action?
If American presidential history proves anything, it is that precedents matter to presidents. Arthur Schlesinger’s seminal work on executive power, The Imperial Presidency, traces how each president built upon the layers of power established in the previous term in order to slowly expand the reach of the office far beyond the original intentions of the Founding Fathers. Fortunately, the strength of the American political system, and the general awareness of the public has prevented the system from tipping completely out of balance. But the need for a dynamic president, which has never been more apparent than in the post-9/11 world of Twitter, underwear bombs, and various never-seen-before forms of terrorism, has gripped the American public.
The Times‘ article points out the glaring truth about the War on Terror: it consistently demonstrates the indeterminacy of the law and its shortcomings when it comes to matters of national security, especially those involving individual enemies. The legal system consistently struggles to catch up with a list of constantly evolving threats that manifest themselves in various forms. This is why the moral questions are so important as well as the insight of philosophers like Agamben. If the law cannot provide an adequate solution in a Western democratic system, what will? As Agamben intimates, and the current practices of the Obama Administration indicate, the real question is who will, and better yet, how?
The takeaway is that the character of our leaders really matters-a lot. Moral principles-correctly grasped by the individual leader and used in the proper way-must fill this extra-juridical gap. The virtue of prudence-applying principles to the facts on the ground-cannot be forgotten. Otherwise, the result is something similar to the Schmittian nightmare where “he who decides is sovereign.” Allowing that would undermine the rule of law that is the very fabric of our constitutional system. It could make our legal system–and its boundaries–capable of being transgressed in the future by presidents who rely on precedents deemed legitimate because of history rather than the moral quality of the decisions that were made within (or begrudgingly outside of) our existing legal framework.