Kant, Mencken, and Locke Walk Into a Bar

And the politicians come out poorer:

Locke has first dibs:

In advocating tax dodging you forget the Social Contract. Is it decent for a citizen to evade his fair obligations to other citizens? Suppose everyone did as you recommend? What would become of the State?

That’s a problem for Kant to solve:

An interesting objection–if only because it proves that the corpse of the late Dr. Immanuel Kant is still dancing. But though it may thus dance, it is nevertheless indubitably dead—and with it the crazy doctrine of a universal moral law. There is, of course, no such thing. Nothing is ever moral for all men—at all events, not with equal horsepower—and by the same token nothing is ever immoral. It may be wrong for a rich man, with so much money that he doesn’t know what to do with it, to dodge his taxes, but it is certainly not wrong in the case of a man whose family must suffer if he pays them. An individual’s first and paramount duty is to himself and his second duty is to his children. Then, in order, come his duties to his wife, his parents, his friends. his brothers and sisters, his creditors, his nieces and nephews, his uncles and aunts, his cousins, his second cousins, his third cousins and so on. Finally come his duties to his enemies, his wife’s relatives and the community in general.

Mencken tries to get the last word:

If the Social Contract were really a free contract, made in cold blood by autonomous principals, then it would lay upon every man a plain duty to pay his taxes in full. But it is really nothing of the sort. On the contrary, it is a contract forced upon him without his leave, and one which he couldn’t evade if he would, and what is more, its terms are grossly unfair and extortionate. The State, in brief, is a professional swindler. Its incessant effort is to make every taxpayer pay $2 or $3 or even $10, for something worth but $1. Theoretically, it collects only enough money each year to pay the actual expenses of government—not a cent more. But actually it collects enough in addition to pay a handsome profit to thousands of men—men who are theoretically servants of the State, but in sober truth are private individuals engaged in the universal human business of getting as much money as possible for as little work as possible.

Certainly, it is no crime for a taxpayer to refuse to submit to this brigandage, and to oppose it with whatever means are at hand. The members of the so-called Government, it is obvious, enter the contest with all of the advantages on their side. Not only have they the police power of the State behind them, to enforce their extortionate demands, but they are also supported by the indifference and superstition of the vast majority of taxpayers, some or whom are too lazy or too ignorant to protect themselves, and others of whom think it would be wrong to try. Therefore, it is perfectly moral, in warring upon such unfair assaults, for the intelligent taxpayer to use devices which, in themselves, may be frowned upon by his private code. In brief, it is moral for him to meet brute force with guile, with chicanery, with downright mendacity—to lie like an anti-vivisectionist whenever the truth would expose him to indefensible and ruinous robbery.

Kant won’t let Mencken have it:

But hark! the corpse of old Immanuel rises to ask a question, to wit: What would happen if every taxpayer swore off most of his takes? How could the State exist? A silly question—like most of those asked (and answered) by that cadaver—for it must be obvious that the majority of taxpayers are so poisoned by moral ptomaines that they will never get the courage to save themselves. The average man is, and always will be, a born sucker. What with his stupidity on the one hand and his morality on the other, he is paralyzed from birth, and so he goes through life a chronic victim. The temptation to rob him is irresistible. Even his wife, his pastor and the policeman on the beat can’t keep their hands off him. He almost begs the world to take his money.

But Mencken persists:

But, supposing the question to be intelligible, it may be answered quickly. And here is the answer: If every taxpayer refused to pay more than, say, 50 per cent. of his taxes, the efficiency of government would not only suffer no diminution, but would probably be vastly augmented. Economy, which is now a mere abstraction, would then become a reality, a necessity. And in the business of cutting down expenses, thus suddenly made the chief concern of the State, nonessentials would go first. If, by any unyielding stupidity of the heads of the State, they didn’t go first—if essentials were thrown overboard to protect supernumeraries and grafters—then the people would rise against the Government and take things into their own hands, and for the first time in the history of the Republic the State would be run as honestly and as economically as the average coal yard, or newspaper, or building association.

The curse of our present scheme of government lies in the fact that it puts no limitation upon taxation. The men who run the State are able to rob us as they will. Naturally enough—since their one aim is to get all they can for themselves and their friends—they lay on all the traffic will bear. The present tax rate on realty in Baltimore, counting in direct and indirect taxes, is fully $3 on the $100—a rate wholly indecent and proposterous. In the absence of legislation reducing it to $1—which rate, if constantly maintained, would be ample to pay all the legitimate expenses of the government—it is the supreme duty of every self-respecting taxpayer to reduce his own bill himself, and in that endeavor he is justified in employing any means, however “immoral,” that may achieve the desired end. Every time he pays a cent more he hands over his good money to meet the costs of pediculine debauchery.

And Mencken wrote this before the states ratified the sixteenth amendment.


What’s Good for Interpreting the Constitution . . .

is good for interpreting the Bible:

Justice Scalia’s determination to take the law as it is earned him many enemies among our progressive elites. The criticism was and remains that Scalia’s textualism prevents the Constitution (and law more generally) from “growing” to meet the changing needs of the people and their government. Scalia was uncaring and a servant of injustice, we have been told, because he was not willing to use the law to do things its often privileged and corrupt authors did not intend it to do. The reprehensible hit piece sent out to faculty and students at Georgetown Law School by Professors Gary Peller and Louis Michael Seidman well illustrates the level of hatred aimed at Justice Scalia on account of his principled approach to law. It was wrong, according to these two professors, both of whom deny the legitimacy of our Constitution, for their law school to mark Justice Scalia’s passing with sympathy and respect because he was, on account of his judicial decisions, a bad man. The virtue progressive lawyers like Mr. Peller and Mr. Seidman demand of judges is quite clear. A good, virtuous judge is one who cares about the oppressed (defined by race, class, and gender), knows that law often is a tool of oppression, and sets himself the task of rewriting the law to make it a tool of justice by serving the interests of oppressed groups, as determined by progressive elites. In rejecting this hubristic model of the judge as savior, Justice Scalia earned endless calumnies, most especially the constant jibe that he was merely a tool of powerful bad actors.

The irony in these charges is thick, for it was precisely Justice Scalia’s refusal to go beyond the text of the Constitution or law that made his jurisprudence by far the most democratic and egalitarian, in the historical American sense, on the Supreme Court of his and perhaps any other time. The Supreme Court Justice who divines “emanations” from “penumbras” of various phrases and ideas in the Constitution and stitches them together into doctrines like the “right to privacy” is serving neither the law nor the people, but his own ideology.

Development of doctrine may allow interpreters of papal instruction to find coherence. But the similarities between development of dogma and a “living, breathing” Constitution are striking.

Grammatico-Historical Interpretation of the Constitution

Lots of posts out there about Antonin Scalia as the faithful Roman Catholic. But the man sure sounded like he learned how to read the Constitution from Protestants:

Nonetheless, there is no escaping a verdict on his influence on American jurisprudence, and that verdict is not affected by the fact that he was a good buddy to prominent liberals. He was an advocate of two judicial ideologies, neither of which is intellectually tenable and which conflict with each other. Originalism was Scalia’s core ideological commitment, the idea that the Constitution should be interpreted as it was understood at the time of its ratification. He employed Originalism to question the idea that the Constitution is a “living document,” as liberal jurists held.

To be sure, there was a need for a conservative corrective after the high court starting snooping around the “penumbras” of the Constitution. As Justice Elena Kagan said in mourning Scalia’s death, “His views on interpreting texts have changed the way all of us think and talk about the law.” But, whether the Constitution is alive or not, the people whose government it intends to frame are most certainly alive and their circumstances change. Laws that cannot change with the lived circumstances of a people soon become disconnected from reality, and that disconnect will lead to the law being held in derision or ignored. . . .

Scalia’s other ideological commitment was to Textualism, the idea that the actual words must be interpreted in a kind of fundamentalist manner. This could conflict with Originalism. For example, an originalist would, like an historian, search for explanations as to what was intended by the drafters of a given text, to confirm that original intent and guarantee against latter day misinterpretations. But, Scalia famously loathed citations to legislative history. Textualism rests on the supposition that the Constitution is a self-interpreting text and if that were true, why would we need a Supreme Court? In practice, Textualism resulted in the conclusion that any given text meant exactly what Antonin Scalia thought it meant.

Of course, it’s not clear that Scalia’s hermeneutic was all positive. But it hardly sounds like it’s a product of deferring to the magisterium or to the development of dogma.

If Theonomy, Then No Machen (or United States)

The folks who lament the decadence of the contemporary West most (who also happen to be some of the biggest whiners about 2k) seem to think that a return to God’s law in the United States would fix our social and political woes. Aside from the problem of finding unregenerate citizens who will follow God’s law, these law lovers do not grasp a fundamental point of U.S. legal and political life (and this may explain why the so-called Religious Right is so easily ridiculed).

For Americans, as well as the Brits before them, law is not simply the embodiment of God’s moral standards. Laws against stealing and perjury do, of course, reflect God’s righteousness. But legal documents like the venerated Constitution are not primarily about morality. They are primarily procedural. Such laws place limits on government. The Constitution, for instance, prescribes and limits the powers of each branch of the federal government. Such restraints are at the heart of the Anglo-American notion of liberty, namely, the idea that people need to be protected from arbitrary and despotic power. To enjoy a life free from a potentially coercive government, we as a people drew up a body of laws that were designed not to constrain the actions of individuals but to prescribe the power of the magistrate. Placing limits on the government for the sake of civil and religious liberties is at the heart of libertarianism and is a major theme in J. Gresham Machen’s thought and political activities. (Whether or not he was a member of the American Civil Liberties Union, he was sympathetic to the ACLU, a sympathy that would drive the likes of Doug Wilson and Greg Bahnsen batty).

Those who want more of God’s law in public life do not appear to understand this basic aspect of civil society in the U.S. They seem to think that if God’s moral standards are on their side, they have the power, duty, and right to make sure that the rest of Americans know that they are deserving God’s wrath. They also apparently believe they have responsibility to condemn the state if it fails to enforce God’s law, hence the double-down point about the magistrate’s duty to require observance of both tables of the law.

That argument about both tables of the law is almost entirely at odds with the American notion that law restrains government from exercising power unspecified in the Constitution. It also runs up against the legal tradition of assuming an accused citizen’s innocence until proven guilty. Just because we “know” someone broke the law doesn’t mean that district attorneys and police are free from following the laws that keep us from being a police state. In fact, the appeal to God’s law by some culture warriors has the flavor of vigilantism, that is, taking the law into their own hands. The problem for theonomists and other moral breast beaters is not simply that they don’t have power to execute God’s law. They also don’t seem to understand that the “rule of law” as we understand it in the United States actually prevents government from enforcing a whole host of laws, including God’s.

Even Presbyterian books of discipline reflect this other rule of law — not the embodiment of God’s morality but the protection from arbitrary power. The OPC’s book ensures that those accused will receive a hearing and not be found guilty of violating God’s law simply on the basis of an individual’s complaint:

3. Every charge of an offense must: (a) be in written form, (b) set forth the alleged offense, (c) set forth only one alleged offense, (d) set forth references to applicable portions of the Word of God, (e) set forth, where pertinent, references to applicable portions of the confessional standards, (f) set forth the serious character of the offense which would demonstrate the warrant for a trial.

Each specification of the facts relied upon to sustain the charge must: (a) be in written form, (b) declare as far as possible, the time, place, and circumstances of the alleged offense, (c) be accompanied with the names of any witnesses and the titles of documents, records, and recordings to be produced.

4. Offenses are either public or private. Public offenses are those which are commonly known. Private offenses are those which are known to an individual only, or, at most, to a very few individuals. Private offenses may or may not be personal, a personal private offense being one which involves injury to the person bringing the charge.

5. No charge of a personal private offense shall be admitted unless the judicatory has assured itself that the person bringing the charge has faithfully followed the course set forth in Matthew 18:15-17; nor shall a charge of a private offense which is not personal be admitted unless it appears that the plaintiff has first done his utmost privately to restore the alleged offender. However, even in the case of public offenses, it is not wrong to seek reconciliation in terms of Matthew 18:15-17 or Matthew 5:21-26 or Galatians 6:1. (chapter 3)

Maybe the Anglo-American tradition of law and constitutional liberties is wrong (though it finds expression in Presbyterian government). Maybe the West if fundamentally flawed and should follow political patterns and traditions established by the Persians and Turks. Or maybe theonoomy and the original Reformed confessions’ teachings about the magistrate lost when the Reformed and Presbyterian churches embraced the politics associated with a certain eighteenth-century republic founded in North America.

Does the United States Need a Spanish Inquisition?

The folks at Called to Communion generally avoid the culture wars and that is to their credit, though their apolitical posture is hardly characteristic of Roman Catholics in the United States these days. Two of the significant GOP presidential hopefuls were Roman Catholics — Newt Gingrich and Rick Santorum. And now another is on the Republican ticket, Paul Ryan for vice president (though whether Ryan is a “good catholic” depends on how your understand the church’s social teaching).

Other bloggers are not so circumspect about the United States and its increasing barbarism. Fr. C. John McCloskey III, writes at the Catholic Thing. He recently argued that if the United States is going to be a Christian nation it needs Roman Catholicism because Protestantism has run out of gas:

With the passage of time, homegrown American Protestant sects sprang up so profusely that they now can be counted in the thousands. Despite this variety, almost all shared a biblical moral philosophy not far removed from Catholics. The loosening of divorce laws and the propagation of the birth control pill in the Sixties, however, precipitated further retreat mere decades later by mainstream and traditional Protestant denominations on other moral fronts, including abortion, homosexual activity, and most recently same-sex marriage.

The primary reason is the lack of dogmatic authority in Protestantism and the reliance on the principle of private judgment. Leaving people to rely on only their opinions or feelings as moral guide is not enough to sustain a country that was once Christian and now is increasingly pagan.

What is the solution? Can American become Christian again? In my judgment, mainstream Protestantism is in an irreversible freefall. Don’t count on any great religious revivals. America needs witness, not enthusiasm. The United States will either become predominantly Catholic in numbers, faith, and morals or perish under the weight of its unbridled hedonism and corruption.

Notice the theme of Protestant diversity and subjectivity versus Roman Catholic unity and objectivity that Called to Communion paradigmatists also stress.

Protestants certainly deserve their share of blame for what has happened to moral conventions in the United States. The mainline churches have been particularly negligent on sexual ethics and marriage, not to mention the atonement.

But the analysis here which reflects a common trait of conservative intellectuals — to attribute rotten cultural fruit to bad religious seed — misses the elephant in the room, namely, government. Churches may promote or tolerate all sorts of moral goofiness but the state can still pass and enforce laws that proscribe conduct. The abolition of plural marriage in Utah is one example. At the same time, churches do not have the power and never have had it to enforce temporally or civilly their teachings or codes of conduct.

In the sixteenth century when Roman Catholics wanted to rid the Low Countries of Protestantism they depended on Phillip II and the Duke of Alba (Margaret of Parma wasn’t too shabby either) to implement the church’s ban on heretics. In fact, Rome’s mechanisms of inquisition generally relied up civil authorities to enforce the temporal penalties for heresy.

So if Fr. McCloskey wants a Christian United States he is going to need more than Roman Catholic priests, religious orders, and parishioners. He is also going to need a strong state. Nowhere has Christianity (or Islam for that matter) become the cohesive glue of a society or country without a government that enforces religious teaching and practice.

In which case, the real problem with the United States is the freedom granted in the Constitution. We cannot have religious uniformity and have the political framework established in the nation’s system of government.

Meanwhile, if national order requires an iron fist, would not the same go for ecclesiastical order? I have made the point before, but it may bear repeating. If the structures of Roman Catholicism yield the kind of uniformity and solidarity that Protestantism does not, then why is liberalism a problem for Roman Catholics in the United States? Churches may depend on the state to enforce their norms in the general society, but churches do have the power to enforce their teachings and rules within the household of faith.

Again, Rome suffers from this problem no more than Protestants do. Without a civil pope to call the shots, churches have to make do with the spiritual powers they have, limited though they are. And yet, if Christians — Roman Catholic and Protestant — are longing for the political equivalent of the papacy to restore decency in the United States, do they still qualify as political conservatives who — think Constitution — are supposed to be wary of the centralization of power in one person?

Last I checked, it is still 2012, some 236 years after the Declaration of Independence. The American Revolution has many faults, and one of them may very well be no provisions to check dangerous religious and philosophical views. At the same time, the order that the revolutionaries established granted freedoms that protect Protestants and Roman Catholics to worship, teach, and blog. Those freedoms were not readily available in places like the Netherlands at the end of the sixteenth century. It may just be (all about) me, but I think I’d rather live now under Obama than then under Phillip II.

Putting a Point on Two Kingdoms

Posts and comments have been flying fast and furious over at the blog of those two crazy guys, Brothers Tim and David Bayly (they admit that they are “out of their minds”) about two-kingdom theology. It started over a week ago with acrimony surrounding the experimental Calvinism of Jonathan Edwards and Martin Lloyd-Jones, but quickly descended into mud-slinging about who has picketed abortion clinics the most, thus proving that the conversion experience is hardly otherworldly.

One of the points to surface in these debates is the cockamamie idea (to them) of the separation of church and state. As I have tried to point out, if you don’t believe in the separation of church and state, what is the alternative? One to which a Bayly Bro alluded was Calvin’s Geneva, with a nice scoop of scorn for those Calvinists who have departed so far from the pater familia of Reformed orthodoxy and Christian politics. But when I try to bring up the idea that idolaters and heretics were not welcome in Geneva – ahem, can anyone say Servetus? – I receive another helping of scorn. I simply don’t know what I’m talking about because executing heretics is not what they are talking about. Then why bring up Calvin?

I may not know what I’m blogging about, but I definitely don’t know how you can promote Calvin’s ideas on church and state and not see the pinch that might be coming in this greatest of nations on God’s green earth for Mormons and Roman Catholics (for starters). I’m not sure Baptists would be secure either since they do rebaptize. (Just trying to show I’m not selective in my dogmatic intolerance.) And the Baylys have the nerve to call me utopian. What land of chocolate (props to the Simpsons) would execute Servetus and keep Orrin Hatch?

And then along comes Rabbi Bret to the rescue. Mind you, he has been banished (it could be a self-imposed exile) from the Bayly Bros land of chocolate blogging for extreme remarks, so I am not implying that he speaks for the Baylys. But I am not sure how the Baylys and other versions of Christian America, from an orthodox George Washington and a federally envisioned Moscow, Idaho, to the transformation of New York City, can avoid having a Christian influence on society that stops at religious intolerance without limiting Christian influence to mere morality (quite like the liberal Protestant project, mind you, where the Bible was good for ethics but lousy for doctrine).

Here is how Rabbi Bret puts a point on it:

A second problem with the idea of a Christian advocating some version of “it is only fair that in a pluralistic culture that no faith, including Christianity, ever be preferred by the state” is that such a statement is treason against the King Jesus Christ. All Christians should be actively working for the elimination of false faiths from our culture and for the elimination of the influence of false faiths upon our civil-social / governmental structures. Any Christian who advocates the planned continuance of religious and cultural pluralism is a Christian who is denying the King Jesus.

If we need to be subject to King Jesus in all of our lives, and if we want his rule in every walk of life, including Manhattan for those who can afford it, then how do we tolerate other faiths in our nation? If the Bible is the norm for all of life, including politics, why doesn’t the state assume the same opposition to false religion as the church? We don’t tolerate heterodox teaching or unrepentant immoral living in our churches, so why would a nation that has Christian standards be more lenient than the church? Wouldn’t that nation be the civil version of the mainline Protestant churches before the sexual revolution? (This question has the ring of plausibility since it suggests why so many Protestants are inclined to conclude that the founding fathers, who were hardly orthodox, were highly orthodox. If orthodoxy is synonymous with morality, then the criteria for judging Christ’s rule shifts significantly.)

But aside from questions this raises about holding back on fully applying God’s word to all of life, including Roman Catholic neighbors, what about being subject to the government ordered by a constitution that preserves religious liberty? If those who say public education is a legitimate option for Christians can be accused of denying the legitimacy of Christian education, can’t those who continue to live with a regime guided by the U.S. Constitution be blamed for supporting idolatry? And if the toleration of unbelief by law is so awful, a sign of disloyalty to King Jesus, then when are folks like Rabbi Bret and the Pastors Bayly going to do more than blog or picket and actually follow the example of many Calvinists and resist tyranny? Is it really fair to accuse 2k advocates of bad faith when the accusers themselves won’t engage in the sort of armed insurrection practiced by Calvinists in sixteenth-century Holland, seventeenth-century England, and eighteenth-century America?

Where Bret seems to part company with the Baylys (and the Christian school advocate, Kloosterman) is over the magistrate’s enforcement of the first table of the law. Bret favors it, while the others seem to think that the magistrate should acknowledge the first table but not enforce it. That sure doesn’t seem to be Calvin’s theory or practice with Servetus who was executed for a defective view of the Trinity (the First Commandment by my reckoning). But even if you allow for this weasely distinction, then haven’t you introduced an area where all that Christ has commanded is not enforce? Christ commands people to have only one God. The magistrate theoretically believes this but lives with subjects who believe in many Gods. Huh? I wonder where exactly the biblical instruction comes for rulers to distinguish the first and second tables of the law so that the latter becomes legislation but not the former.

At the end of the day, it seems to me that the Covenanters had a good position on all this, even if I disagree with their starting place. They refused to participate in the U.S. regime because it did not acknowledge Christ as Lord. They would not run for office or vote in elections (up until about 1980). That seems like a good way of keeping your distance from a regime that tolerates other faiths and doesn’t acknowledge the Lordship of Christ. But folks like Bret rail against the United States and then run for Senate on the Constitution Party ticket – the God-denying Constitution, that is.

For 2k advocates along with your average conservative Presbyterian, Bret’s and the Baylys’ complaints are no skin off our backs. American Presbyterians revised our confession of faith and we now confess that the magistrate has a duty to protect the freedom of all people, no matter what their faith or level of unbelief. According to Bret’s logic, my communion is guilty of treason against the Lord Jesus Christ. And yet, the Covenanters, who would have disagreed vigorously with the American revisions of the WCF, never once considered (to my knowledge) severing fellowship with the OPC because of these differences on church and state.

In which case, are the Christian transformers of the U.S.A. making a mountain out of a mole hill? Or is it better to say that they are like Peter, defending his lord with a sword, when that way of doing things has passed away and a new order is in place, a spiritual regime for a spiritual institution – the church – which is the kingdom of the Lord Jesus Christ?