Morons, murders, and manifestos

I believe in the presumption of innocence: and that we ought all to give it. Right now, the Mangione kid has that presumption (he may or not be a murderer; he is quite evidently an utter shit). All the same, a few things…

Whoever is found guilty of the murder of Brian Thompson can cite whatever he likes as ‘justification’, but there is no justification. None. And whoever is convicted gave no such presumption to the victim. Rather, on whatever feigned grounds, the murderer acted as judge, jury, and executioner, without hearing or process. That is intolerable—and inexcusable.

Those attempting to palliate, excuse, or justify this murder, and those fawning upon Mangione and his puerile manifesto, ought to be—were they capable of shame—ashamed of themselves. And they certainly ought to be despised and condemned openly and repeatedly.

As to the accused… Such faith as I retain in the young is not bolstered by his alleged actions or by the perverse support being given to whomever the murderer may be found to have been.

(If Mangione is found guilty, that shall merely confirm my opinion of the sort of people currently being turned out by the American university, and today’s Penn not least.)

One thing mystifies me. Yes, Mangione, the suspect, went to Gilman, and presumably there is money in the family. Well, I had classmates at W&L who’d gone to Gilman. (Mostly large, gruntingly monosyllabic, and obsessed to the exclusion of all else with lacrosse.) I can’t imagine them in this position.

And the press keeps describing him as the son of a ‘prominent Maryland family’: which baffles me.

I’m a Carroll on both sides of the family, a cousin to the Blenheim Lees, the Steuarts, the Johnses, Hopkins, Calverts, and Crosslands, a connexion of the Chews and the Howards… Perhaps my standards of prominence are different. It’s a minor point in all this, but this trope does seem poor journalism with a (perhaps unconscious) agenda. Murderers appear in all classes.

And this matters. For this sort of thing ought never to obscure what matters: the presumption of innocence; the necessity of due process; the duty of doing justice; and the brute and brutal fact of murder.

Here endeth the Lesson.

Initial thoughts on an election.

Right. Well, here we are. I shall doubtless have much to say in the coming weeks—if I am spared, which is never certain. (I have, if I can afford it, a stress test later this month. The Constitution has four years of it come 20 JAN.) For now, I suggest soul-searching to the Criers of Wolf and the Belloc’s Matildas (‘Matilda told such Dreadful Lies, / It made one Gasp and Stretch one’s Eyes … For every time She shouted ‘Fire!’ / They only answered “Little Liar”! / And therefore when her Aunt returned, / Matilda, and the House, were Burned’). This is self-inflicted on your parts. Thanks for the sour persimmons, damn you.

Meanwhile, I advert you to these:

https://www.persuasion.community/p/the-dawn-of-the-trump-era

and

https://www.persuasion.community/p/an-unthinkable-plunge—at once.

When, after the Soviet archives were opened, a vindicated Robert Conquest issued a new and revised edition of The Great Terror: Stalin’s Purge of the Thirties, he titled it, The Great Terror: A Reassessment … denying himself the pleasure of releasing it, as Kingsley Amis suggested, under the title, I Told You So, You Fucking Fools.

The Democratic Party has finally succeeded in its long suicide. (Those in charge have risked taking down the Republic with them.) The Republican Party was smothered with a My Pillow in 2015-2016. The Constitution survives. Thus far. To ensure that it does survive is our duty. To do that, the Left must be read out of the Democratic Party before we turn to snatching Republican brands from the burning: everyone to the Left of Classical Liberalism must be defenestrated. They can hold somnolent protests around a diverse drum circle in the reek of stale bong-water and be ignored. There are good, decent, Liberty-loving Republicans: I know many of them, from State district judges in Texas to—speaking of thankless tasks—town selectmen in Connecticut; and they are needed. Both parties must be purged of their scum; only adherence to the Constitution as we have received it and to the principles of the Founders can effect this.

You’re damned right I’m kicking people while they’re down. To get them on their feet. Stop whining, damn it. There’s work to do.

For S Luke’s Day

This the Feast of Luke: Evangelist, artist, and physician. The world is clearly ill and in want of care and healing. We are all unwell and stumbling on a precipice, we are all cast down; we are all in need of good news, of medicine, and of the news and the hope of our cure. This day especially, let us give thanks for all healers and carers, all subcreators—I prefer Tollers’ term to YouTube’s—, and all who bring news and good cheer of the means of grace and the hope of glory. Let us pray for all who are infirm or ailing, the old and the dying, those facing, undergoing, or recovering from medical intervention, all who are battling or in recovery from addiction, the downcast, and those in mental or spiritual darkness; and that all carers, healers, artists, writers, and messengers of Good News be strengthened. By the wholesome medicines of the doctrine delivered by S Luke, may all the diseases of our souls be healed. Amen.

I have been remiss in not mentioning this here.

Come for the fireworks. Stay for the eviscerations. Follow the analysis. And join in the anathemata. My latest—which is to be an appendix to the forthcoming The Conscientious Conservative—, which disposes of the claims of Trump, Trumpism, and the followers of either, the Trumpshirts, to be either conservative, in the Anglo-American sense of that term, or Christian, in any small-‘o’ orthodox, small-‘c’ catholic sense: the sense which my tenth cousin four times removed, CS Lewis, called ‘Mere Christianity’.

Hymn for the End of Term

In the last days of the era BB—Before Beryl—, an old friendly acquaintance … wait. Let me explain. Some decades ago, during the Bubble, there was a website. Its gimmick was to provide reviews of consumer products—books and films, fatally, included—by actual consumers thereof. Royalties were based upon, ostensibly, the quality of the reviews as measured by their popularity and, thus, the ad revenue which they could drive. Unfortunately, this model had the same failures as that identified by Polybius in his comments upon democracy, a form of which maxim has been wrongly attributed to Alexis de Tocqueville, my 12th cousin six times removed, and to Alexander Fraser Tytler, Lord Woodhouselee, my 13th cousin six times removed: that democracy can exist only until the majority discovers it can vote itself largess out of the public treasury. Many excellent reviewers did very well for a time, writing for the site, all off the quality of their work: including (I did mention books and film, did I not?) the now celebrated authors David Abrams, Curtis Edmonds, and Cornelia Read, and the editor JK Kelley (as well as such Grub Street hacks as, well, me). Others, however, created little cliques and claques, upvoting one another regardless of merit and profiting illegitimately in consequence, and running the thing into the realm of the profitless; the founders, in the usual Silicon Valley fashion, sold out for a profit and walked away; the whole thing collapsed in a welter of debts (they never did pay me the $5k or so which they then owed me); and that was that. But many of us remained friendly acquaintances online, and occasionally offline and in person.

So. In the last days of the era BB—Before Beryl—, an old friendly acquaintance of mine from the days of that dead website, a physician and a specialist at that, posted the query, Did the decision in Trump mean that Nixon could not have been prosecuted for Watergate? I replied, naturally, ‘No. Next lay question.’ To which another old friendly acquaintance from the days of that dead website took, mildly enough, both exception and umbrage. In the course of our back and forth, I pointed out, perhaps with more apparent acerbity and asperity than I intended, that only one of us—me—was a lawyer, however retired, and one who in fact had spent some three decades not only in, but effectively as, alone, the in-house appellate section of a small but politically well-connected law firm (and not a Republican one)[1] in one of the four largest metropolitan areas in the United States. My old friendly acquaintance demurred, on the stated ground that Supreme Court opinions are so written as to be (as Article XXIV[2] puts it) ‘understanded of the people’ … wherefore my vita was irrelevant.

To this I replied that I should have to rejoin the issue after the hurricane which was bearing down upon me had passed.

We are now in the beginning of the Era AB, After Beryl, and I have both power and Internet access (‘fear me!’).

Americans remain in character, through centuries of demographic change, what my connexion Edmund Burke MP said of us in the House of Commons, urging conciliation, on 22 March 1775. Amongst the many symptoms of the decay in our public discourse is less an exaggerated deference to expertise, problem though that too often is, than an excessive and adulatory regard for it, leading those who don’t possess it to claim it for themselves. Bluntly, every Karen in every two-bit HOA thinks herself a physician (brandishing ‘essential’ snake-oil and decrying vaccines); every halfwit in the country thinks himself a theologian; and every layperson is persuaded he or she is a lawyer. I do not think it too much to say that part of the envenoming of our increasingly violent uncivil discourse is predicated upon this delusion. I don’t tell engineers how to engineer; I don’t argue with doctors about medicine;[3] I’d as soon mechanics, astrophysicists, doctors of divinity, journos, SAHMs with no other identity, and real estate agents should cease arguing—from a purely lay perspective—appellate law with me, or, for that matter, politics in the academic sense (one of my other degrees), philosophy (another of my degrees), or history.[4] Note that my old friendly acquaintance who was ready to argue law with me should never have dreamt of arguing medicine with that old friendly acquaintance who posted the question which occasioned the argument. I stay in my lane as much as I can do; I’d as soon others also followed the rules of the road. We’d have fewer crashes, as a country, less partisan road rage, and less frequent swerves into the ditch, if we all did this.

But we as a nation go on thinking, each of us, that each of us is omnicompetent, within and without those fields in which we do have some colorable claim to expertise.

As the Era BB stumbled to its end, a lamentable hysteria could be far too frequently observed, and one directed towards the Supreme Court of the United States. Another old friendly acquaintance from the defunct website posted a photograph of the entrance to Auschwitz Birkenau with the legend, This was an official act. (Yes; it was … by German standards, in Germany, under a dictatorship, with the rule of law suspended and no constitution worthy of the name in place. That’s not apples-to-oranges, that’s apples to orcas. I find it interesting, in a mournful sort of way, that people who loathed Ronald Reagan are now urging that freedom is only one generation away from extinction here…)

Others on social media ranted about the Divine Right of Kings and The King Can Do No Wrong, with copies of a portrait of Charles I. Well, that monarch is my second cousin twelve times removed, and we higher Anglicans consider him Charles I King and Martyr, King of England, Scotland, and Ireland, one who, for all his faults and follies, yet became a martyr: to the independence of the Church from interference by a passing majority of her enemies, just as much as were Becket and More;[5] and to the rule of law and to due process, when he was judicially murdered by a kangaroo court which allowed him no defense: one established by a miliary coup led by my despicable fifth cousin nine times removed, one Oliver Cromwell, and a kangaroo court which included ten of my connexions and rather more of my cousins from fourth to eleventh, between ten and fourteen times removed.

Still others, when not having the screaming hab-dabs over how the Court is ‘corrupt’ (rubbish), commenced shrieking over the intrusion of ‘unelected functionaries’ in the political process. Which is an utterly daft thing to say of a Court which, in Loper Bright, told the unelected functionaries of various Federal agencies that they could not do just that and expect the courts to defer to them, and in Snyder, in Fischer, and in Trump—which were not final dispositions, for you laypeople: they were remands with instructions on the law to apply—, told (unelected) prosecutors not to overreach (amazing, really, that people who commonly begin the mnemonic Alphabet Song with ‘A, C, A, B…’ and who lump prosecutors in with police as Enemies of the Proletariat, are now bitching about restraints on law enforcement and prosecution on no other grounds than whose ox was gored and is in the ditch); in Corner Post, told those unelected functionaries the agency regulators they couldn’t change the rules in the bottom of the seventh inning without complying with the Administrative Procedure Act; in Jarkesy, told those unelected functionaries the SEC they couldn’t do an end run around the right to trial by jury before a real and independent judge…

Like my 18th cousin twice removed, Abraham Lincoln, I do not think that ‘thus saith the Court’ is the final answer to any political issue. Nor do I have any exaggerated regard for the Court now or in the past: sometimes, the Court gets it wrong. But, although I agree with Mr Justice Oliver Wendell Holmes Jnr, my 14th cousin twice removed, that the life of the law is not in logic, but in experience, the fact remains that decisions are to be judged upon their legal reasoning and not upon one’s agreement or disagreement with the result. As in a mathematical proof, the right answer is meaningless unless you can show your work and it checks out.

And I think we must conclude, from the present discontents, that, pace my old friendly acquaintance from the defunct website, legal decisions and appellate opinions are not in fact readily and easily understandable by laymen, as a result. As my tenth cousin four times removed, CS Lewis, wrote,

Comparative evaluations of essentially different excellences are in my opinion senseless. A surgeon is better than a violinist at operating and a violinist better than a surgeon at playing the violin.[6]

There is a reason why for so long so many law library shelves, until all of this was moved to the Internet, groaned (and grumbled and muttered about suing over it) beneath the weight of volume upon volume in the Words and Phrases series, and all the Reporters. The term ‘mortar’ means very different things to a bricklayer and an 11C; parents complain of irritable children, but pædiatricians rejoice when an infant is responsive to stimuli; ‘port’ can have several meanings at sea, none of which is the same as the meaning your wine merchant has in mind; testators may wish, absolutely, to make a bequest, but a bequest of a property ‘absolutely’ means something specific in law. Ambiguity abounds in common speech, and so also does misuse: rare is the layman who knows the difference between slander and libel, and rarer yet the layman who is aware how infrequently some statement he resents is in fact actionable as either.

Indeed, I submit that the ascending likelihood of understanding legal decisions and appellate opinions is as follows: laypersons; laypersons who take their opinions from what passes as news in this increasingly benighted country; laypersons who know a lawyer; laypersons who read law-blogs or listen to media-friendly legal ‘experts’ (who are the equivalent of hired expert witnesses in litigation settings); lawyers with no appellate experience; lawyers who subsist off being media-friendly legal ‘experts’; political partisans brandishing their Bar cards; and appellate lawyers, who may in good faith but always within reason disagree. I further submit—and, remember, the question here is not whether you or I approve a result; it is, rather, whether the result was properly reached—that the sort of opinions, whether majority, concurring, dissenting, or concurring in part and dissenting in part, which are embraced, when handed down, by laypersons, tend to be objectively bad: always in their reasoning and quite often in their ruling. After all, the classic samples of popular and popularly misunderstood opinions include Dred Scott; Plessy; Schenck; Buck v. Bell; Griswold;[7] Roe;[8] and Obergefell.[9]

So what did happen in the opinions for the Term? And what is the takeaway?

There were non-unanimous decisions, of course: there almost always are. But they were by no means always split along what laymen and journalists lazily label ‘ideological’ or ‘partisan’ lines. I reiterate: I give each successive Court the respect it earns; the Court as an institution, however, commands respect as the Constitution commands respect. Whoever is on the Court; and whoever one, as an observer, may be. (Of the seventeen Chief Justices of the Supreme Court of the United States, three—Jay, Burger, and Roberts CJJ—are connexions. The other fourteen are cousins of mine. For most of the Court’s history, until recent times, a similar proportion as between in-laws (and outlaws) and cousins has obtained as to the Associate Justices.)[10]

And what, precisely, is it that the Court properly does?

The answer is simple, and is set out in McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 407 (1819), Marshall[11] CJ writing for the Court:

A Constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would probably never be understood by the public. Its nature, therefore, requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves. That this idea was entertained by the framers of the American Constitution is not only to be inferred from the nature of the instrument, but from the language. Why else were some of the limitations found in the 9th section of the 1st article introduced? It is also in some degree warranted by their having omitted to use any restrictive term which might prevent its receiving a fair and just interpretation. In considering this question, then, we must never forget that it is a Constitution we are expounding.

Note that: We must never forget that it is a Constitution we are expounding. What does that mean in practice? Well, for our present purposes, the most important thing it means is that the Court must always remember that what it does becomes precedent, of general application, and likely to be used in unforeseen ways in unimagined circumstances after. The decision of a trial court is binding upon the parties to the case decided, and those in privity with them: it is the law of the case. Decisions of the Supreme Court are the law of the land. You may never be a small-town mayor in the Rust Belt; pray God, you shall never be a rioter drunk on MAGA moonshine, storming the Capitol; and by God’s grace you’ll never be remotely like the flabby orange hypno-toad, Donald Trump, who, pace the delusions of his simple-minded acolytes, ‘ain’t no new messiah’ and is not ‘close enough for rock and roll’.[12] But given that even a minimally competent prosecutor can, without or without a typically spineless grand jury, indict a ham sandwich, you may be thankful that prosecutorial overreach has been checked by Snyder, Fischer, and Trump, and that the Court has said clearly that statutes under which prosecutions are brought mean what they say and no more, and cannot be used in the ‘throw mud at the wall and see what sticks’ fashion so long resorted to by prosecutors: whether the target is an ordinary moron, a small-town pol, or an ex-President. The law—and you may thank God for it—is no respecter of persons.

And because the law is no respecter of persons, it is equally true that the lower courts must be and now have been instructed that statutes and the Constitution itself are to be read as written and intended, ‘within the four corners of the document’ (just as we do with contracts), for their intended purpose and not as Hail-Mary passes to reach an otherwise unreachable but desired result. Wherefore you may and ought to be grateful—whether you like the immediate result or not—for the decision in City of Grants Pass, wherein the Court declined to accept an amorphous reading of the Eighth Amendment and its use as a catch-all ‘gotcha’ to justify an otherwise legally unjustifiable decision. After all: if mayors and municipalities and politicians and ex-Presidents of the United States—the powerful—are to be in a position in which they cannot know the law to follow it and the law can be made malleable to their detriment at the whim of any judge, then no citizen is safe. That. Means. You. The powerful are not, of course, above the law; but they must not be beneath it, unworthy of its protections and of equality before it, either: in that, they are the canaries in the coal mine.

The law—and the Constitution, a fortiori—is no respecter of persons; the law—and the Constitution, a fortiori—is the guarantor of our rights: which includes the rights of those we hate, even of those we justly hate. (Politicians, for example.)

One of those rights is of course that of free speech and publication. The ‘corrupt’, ‘unelected’[13] Court so many people are screaming at is the Court that slapped down Texas and Florida, and the Fifth and Eleventh Circuits, in those states’ nakedly political attempt to police the Internet, in Moody v. NetChoice. (The Fifth got it utterly wrong; the Eleventh got it only half right; and now everyone has been told to go back and get it right by conducting a complete facial analysis[14] of the First Amendment implications of the statutes at issue.)

This is equally true of the right to association, particularly when the association is united by a purpose of free speech, and political speech at that. Regulators, legislators, and prosecutors cannot be allowed to use the powers of their office or authority to pressure others to hamper associations engaged in political speech the government dislikes, and thus to do, or attempt to do, indirectly what they most certainly cannot do directly. And whatever you think of the NRA, that principle—one which could as easily save organizations you like—was reaffirmed in NRA v. Vullo.

The law—and the Constitution, a fortiori—is no respecter of persons; the law—and the Constitution, a fortiori—is the guarantor of our rights: everyone’s.

It is unlikely that most of you are investment advisors. Few of you, I think, shall be part of the Atlantic herring fleet. I doubt many of you own a truck stop; I can, to be frank, readily imagine most of you shuddering at the thought, because, Well, Really, That’s Where Those People Work and Gather, Daaahling… It is doubtful in the proverbial extreme that you are a major multinational corporation or a union boss. And there are much better than even odds that you have an irrational fear of firearms and the Frightfully Common People who own them. But if so much as work a day in your life, and granting that you pay taxes, you ought to welcome a series of decisions in which the Court has said, No: regulators do not get to change the rules during the game without adhering to the Administrative Procedure Act, rewrite statutes to say what Congress did not but the agency wishes they had done, obtain injunctions against your business or the business which employs you without satisfying the four factor test for getting an injunction, or try you administratively before an agency employee who is not an Article III judge and without your being able to avail yourself of your right to a trial by jury. Nor shall the courts any longer defer to agencies arrogating to themselves the power to legislate which is held by your elected representatives in Congress. You ought, then, to be grateful, whether or not you like the particular outcome in a particular situation, for the rulings in Loper Bright, Corner Post, Cargill, Starbucks v. NLRB, and Jarkesy. Because that is what those cases do: they say, Stop, to administrative and prosecutorial overreach and to lawmaking by unelected and unaccountable bureaucrats, and any man jack or woman jill of you may tomorrow find yourself in a position in which you’ll be unfeignedly thankful for those precedents.

Likewise, any one of us may at any moment find cause to be heartily grateful that a case cannot be dismissed when it is stayed for arbitration pursuant to an arbitration clause in a contract (you may well be surprised how many arbitration agreements you’re a party to without knowing it, because, frankly, most of you shan’t have read the Terms & Conditions of the things which make your lives easier or keep you employed, or the End User License Agreements which allow you to do all the things you do); and any one of us may find at any moment cause to be heartily grateful that a lawsuit you have every prospect of winning cannot be time-barred just because the government fucked around for years on its decision which gave you the right of action once issued, and then sent notice of its denial to the wrong address so that you didn’t receive it timely. So be thankful for Smith v. Spizzirri and for Harrow.[15]

The law—and the Constitution, a fortiori—is no respecter of persons; the law—and the Constitution, a fortiori—is the guarantor of our rights: and is Kantian. I don’t want to be a—wait for it—complete Kant about this, but what’s sauce for yon goose must, if we are to have equality before the law, be sauce for the gander yonder.

This is one area in which lay opinions on legal decisions so often fail miserably. Yes, it’s true that laypersons, in confronting a legal opinion, literally don’t know what they are talking about, just as laypersons opining on a medical diagnosis do not. But there’s also, always, the hypocrisy. Focusing solely upon their preferred policy outcomes—which is effectively a category error, confounding and conflating legislation with judicial decision-making—, laymen have trouble grasping the stark fact that they must ‘will universals’ here. The law must be the same for you and her and them and the senile old fool and the Day-Glo orange Mussolini wannabe, for W and Obama and Biden and Trump, for Your Guy and Their Guy, or it is not the law. Particular outcomes and your happiness or discomfort with those outcomes is irrelevant: the procedure, and the equalization of the law to apply universally, is what matters.

It’s the sheer hypocrisy which annoys me. The stale-bong-water slacktivists who chant that ‘corporations aren’t people’ (no one said they were: legal personhood has nothing to do with the state of being human): all right; have it your way; and take as the inevitable consequences that newspapers cannot endorse candidates, unions can’t make campaign contributions, corporations can’t be prosecuted or sued civilly, and the Sierra Club, the NRDC, the ACLU, NORML, and the Human Rights Campaign can’t lobby pols, contribute to causes, or sue anyone. The crowds shrieking ‘Keep Your Laws Off My Body and Out Of My Bedroom’? Fine. What do you think Obergefell did? Because it damned sure intruded the state into your private sexual life.[16] Those of you now running about hyperventilating and with your hair on fire over a preliminary presidential immunity ruling? Okay. Nobody’s pulled a Gerald Ford yet and pardoned or otherwise immunized Bill Clinton, or 43, or Barack Obama, so … be careful what you ask for. We have an independent judiciary because its decisions are not subject to being overruled by the other two branches. We have an independent legislative branch because its deliberations and actions are nonjusticiable, and because of the Speech or Debate Clause, Art. I, Section 6, Clause 1:

The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

And if we are to have an independent executive branch, there must equally be some degree of presidential immunity, or non-justiciability for some sorts of executive actions. Congress tried a power-grab in 1867 with the Tenure of Office Act, and failed to make it stick with the failed impeachment of Andrew Johnson;[17] the Court, retrospectively, noted that the Act, by then repealed, should have been in all likelihood unconstitutional, in Myers v. United States, 272 U.S. 52 (1926).

To an extent, this confusion, or Sheer Bloody Ignorance, may be excused in laypersons, on a sort of ‘Forgive them, Father, for they know not what they do’ basis: violinists assessing surgery, surgeons reviewing a violin recital. Unfortunately, the dissents upon which people are presently seizing, most notably in Trump, cannot plead ignorance in extenuation. These Justices clearly know better: they have written excellent opinions, including majority and per curiam opinions. Not here, though: these are only in form legal opinions; what they are, are stump speeches, in the same way that the majority opinion in Obergefell was a sociological screed disguised (thinly) in a judge’s robes. As stump speeches, they’re pretty good, and align with my preferences. As legal opinions even in dissent, they are monumentally unpersuasive.

What (inter multa alia) laymen do not understand is that any court is constrained, in its rulings, by the evidence before it (which, in an expedited appeal of a preliminary ruling, as is the case in Trump, may be limited at this stage); by the competence of counsel for the parties; by what points counsel raised and briefed; and, on appeal, by the record and briefs before the appellate court, and, here, the error, if any, committed or not committed by the intermediate appellate court.

That is how appellate law works.

Within these constraints, and at this point in the proceedings, the majority opinion in Trump, distasteful as the immediate result is—I hold no brief for the base, vile, power-hungry, crooked, wholly un-conservative, liberty-hating, sociopathic, damn-Yankee orange son of a bitch—, is, alas, legally compelling. It is incontrovertible that a President of the United States in exerting the powers specifically granted to any holder of that office by the Framers, in the Constitution, is not accountable to the Courts for his actions. He is accountable to Congress only in the context of impeachment (from which only the shameful cowardice of the Senate saved Trump in the past, just as was so for Bill Clinton), and, at the ballot box, to the electorate. Likewise, the Court is not accountable to the Legislative or Executive Branches in its performing its functions; and the Congress, whose impeachment power is constrained by no law save its own will,[18] cannot be made to answer to either of the other branches, and its choice to impeach is not justiciable. See Nixon v. United States, 506 U.S. 224 (1993); 113 S. Ct. 732; 122 L. Ed. 2d 1.

Here, by the way, is where I think the majority foozled the approach shot: instead of speaking of immunity, it had been better to speak in terms of non-justiciability. Political questions are non-justiciable. Nixon, supra, at 228, citing Baker v. Carr, 369 U.S. 186, 217 (1962) and Powell v. McCormack, 395 U. S. 486, 519 (1969). Laypeople may not like hearing this: if so, they have not considered what should become of the separation of powers, and thus of our liberties, were this standard to be abandoned. Be careful what you wish for.

At this stage and in the context of a pretrial motion, and on the current briefs and record, it is equally reasonable to grant ancillary official actions of the Executive a rebuttable presumption of immunity. I believe, personally, with Cousin Tom,[19] that that government governs best which governs least. But it must govern; and the system of federalism and of the separation of powers established by Cousin John,[20] Cousin George,[21] Cousin Alec,[22] Cousin Jimmy,[23] and the rest of the Framers, and glossed by Cousin John Marshall, demands that the three branches not be perpetually in a Mexican standoff after the manner of The Good, the Bad and the Ugly. The determination of what are these ancillary official actions, and if and when any presumption of non-justiciability or immunity is rebutted, is for the district court, and the Court in Trump duly remanded that issue. (Remember when most of those now throwing conniption fits were celebrating Knight First Amendment Institute v. Trump, 928 F.3d 226 (2nd Cir. 2019), and its characterization of that twunt’s tweets as official acts? Be careful what you wish for, as I said at the time.)

Donald Trump is not Charles I: he’s not worthy to lick Charles I’s boots. Do you wish to make Trump a martyr to due process? (If he were to become so, he’d not be Charles I King and Martyr, or S Thomas More; he’d be the Amalgamated International Brotherhood of Putinists & Trumpshirts (Local 666)’s Horst Wessel.) Be careful what you wish for.

All that has happened here is a remand for further proceedings below, consistent with this and prior opinions of the Court, reaching back to Cousin Harry’s[24] day, regarding the extent of what are and what are not core or ancillary powers granted the Executive by the Constitution: just as in Trump v. Hawaii, 585 U. S. 667 (2018). This is the Court’s job; this is what is meant to happen.

The same shall likely happen with the Florida District Court ruling.

Which brings us to the real takeaway from this term’s opinions.

None of this should be happening had Congress done its damned job: impeaching Trump, which should have been unchallengeable and non-justiciable; writing its own statutes and not seeking political cover by passing high-minded aspirational rubbish and leaving the details to the bureaucracy; committing to legal clarity so that all may know what is and is not lawful and unchangingly so, and ensuring equal treatment before the law; crafting legislation that applies equally to both sides…

None of this should be happening had Congress found its balls and reenacted a Special Counsel statute; or had Joe Biden and AG Garland not doubled down on failure and taken the political risk of getting in a better DoJ team from Main Justice and assigning a competent one to take over from Jack Smith.

And none of those failures should be happening had the electorate done its damned job.

I cannot but imagine that the Court is as tired in its sphere as I am in mine of having to step up when no one else will or shall, and being, faute de mieux, the only adult in the room.

You’re unhappy with the present situation? So. Am. I. Wherefore leave off looking for someone else to save your bacon, and get off your asses and vote. And stop wasting time pretending you know the law—and arguing it. It wastes time and does nothing to fix things. As my connexion John Stuart Mill said,

A man who has nothing which he is willing to fight for, nothing which he cares more about than he does about his personal safety, is a miserable creature who has no chance of being free, unless made and kept so by the exertions of better men than himself.

So … stop moaning about legal decisions you don’t understand, and act to address the political issues you do grasp, however feebly. A republic cannot be run on the cheap by cowards and helpless damsels perpetually in distress who must be rescued by the exertions of better men, and by small minds and slackers.

Here endeth the Lesson.

[1] Largely made up of Blue-Dogs and Conservative Southern Democrats, in fact. Though we had a Republican of counsel.

[2] Of the Anglican Articles of Religion, the Thirty-Nine Articles; not of the Constitution, which does not have so many Articles, for those unaware.

[3] I do however take them to task as an historian where I have grounds to do so—my book on RMS Titanic comes to mind—just as, at an earlier point in my life, I cross-examined them as needed.

[4] Last I looked, I’m the author of what is, in an admittedly uncrowded field, the definitive work on the Washington-Huntingdon correspondence and of its effects upon early US immigration policy; the author of what I think I can fairly say is a well-regarded analysis of the political history of the 1941 extension of the Selective Training and Service Act of 1940; the co-author of one, at least, of the primary works on the legal and political history of the enquiries into the loss of RMS Titanic; and the co-author of a popular account of the events of 1937, from the Spanish Civil War to the Second Italo-Ethiopian War and from the publication of the encyclical Mit brennender Sorge to the Marco Polo Bridge incident and the Rape of Nanking, which were the final catalyst for the Second World War.

[5] Sir Thomas being a connexion of mine.

[6] The Discarded Image: An Introduction to Medieval and Renaissance Literature, Cambridge University Press, London, 1964.

[7] ‘My God, Justice Douglas! What is that awful stench?’ ‘Emanations from penumbras, m’ boy, emanations from penumbras…’ William O. Douglas, I’m sorry to say, is my 15th cousin. John Marshall Harlan II is my 17th cousin. Whizzer White, who was right in his dissent, is my 13th cousin twice removed.

[8] Roe—that egregious instance of legislating from the Bench—has bedeviled American public discourse for decades. The infuriating thing about abortion laws is that they ought never to have been made a Federal issue at all. Those opposed to abortion regard abortion as homicide, and the only issue as being, When is it legally justifiable homicide? Those in favor see it as a matter of public health and welfare (and, though they refuse to confess it, of eugenics, mostly racially-motivated eugenics). In the United States’ system of federalism, both these issues are traditionally the province of the several states, such that if Texas, say, wishes to outlaw abortion and Massachusetts, for example, to make it publicly funded to all who seek it, then, under the Ninth and Tenth Amendments, there is nothing for the Federal courts to consider. It’s not simply that Roe was a badly-reasoned opinion; it ought never to have been granted cert. at all.

[9] Again, the issue is not the result, but, rather, its reasoning and how it was reached.

[10] John Jay, 1st Chief Justice of the United States, is a connexion. John Rutledge, 2d Chief Justice of the United States, is my 11th cousin ten times removed. Oliver Ellsworth, 3d Chief Justice of the United States, is my 16th cousin four times removed. John Marshall, 4th Chief Justice of the United States, is my 10th cousin six times removed. Roger Brooke Taney, 5th Chief Justice of the United States, is my 11th cousin six times removed. Salmon P. Chase, 6th Chief Justice of the United States, is my 15th cousin four times removed. Mott Waite, 7th Chief Justice of the United States, is my 13th cousin four times removed. Melville Weston Fuller, 8th Chief Justice of the United States, is my 12th cousin five times removed. Edward Douglass White, 9th Chief Justice of the United States, is my 13th cousin thrice removed. William Howard Taft, 27th President and 10th Chief Justice of the United States, is my 12th cousin four times removed. Charles Evans Hughes, 11th Chief Justice of the United States, is my 13th cousin four times removed. Harlan Fiske Stone, 12th Chief Justice of the United States, is my 9th cousin four times removed. Frederick M. Vinson, 13th Chief Justice of the United States, is my 12th cousin thrice removed. Earl Warren, 14th Chief Justice of the United States, is my 19th cousin four times removed. Warren E. Burger, 15th Chief Justice of the United States, is a connexion. William Rehnquist, 16th Chief Justice of the United States, is my 12th cousin thrice removed. John G. Roberts, 17th Chief Justice of the United States, is a connexion.

[11] John Marshall, being my 10th cousin six times removed. James W. McCulloh is a ninth cousin six times removed. Counsel for McCulloh was Daniel Webster, my 12th cousin thrice removed. Maryland was represented by Luther Martin, my 11th cousin six times removed. Chief Justice Marshall was writing for a unanimous Court, the associate justices of which were my 10th cousin seven times removed, Bushrod Washington; Henry Brockholst Livingston, my 19th cousin five times removed; Thomas Todd, my 9th cousin eight times removed; Joseph Story, 12th cousin six times removed; and two connexions of mine, Gabriel Duvall and William Johnson Jnr JJ.

[12] To paraphrase Messrs Peterik, Smith, and Sullivan as writers of .38 Special’s single, ‘Rockin’ into the Night.’

[13] Thank God. Imagine if it weren’t.

[14] That is, Are the statutes unconstitutional on their face, as a preliminary consideration prior to assessing whether they are unconstitutional as applied in this specific situation?

[15] Cue loud booing from any Old Etonians in the comments.

[16] I reiterate my dissent from this ruling, on grounds you may not expect. Marriage, as a legal institution, has nothing to with love—or sex. It’s about property. It exists merely to promote the orderly division of heritable property from two sets of in-laws, through their children, to the grandchildren. The state has otherwise no valid interest in the domestic, romantic, or sexual arrangements of any two or more consenting, capable adults, and no other justification for extending everything from tax breaks to testimonial privilege to married couples, imposing fiduciary duties on them, and making them one another’s agents, cestuis, and trustees, to preserve a marital estate for the benefit of any children of the marriage. (And, no, save for wry humor I do not root my objection in same-sex marriage’s having deprived legal draftsmen of doing joint Wills, POAs, Durable POAs for Health Care, and the like, at $50 a pop per document, for same-sex couples … although this does violate the Lawyers’ Full Employment Act of 1750 BC as amended.)

[17] My 20th cousin thrice removed. Downward mobility is real. Ludwig, Graf von Ravensberg, became a maternal ancestor of my 15th great grandfather, James III, King of Scots; the descendants of Ludwig’s daughter, Jutta, Gräfin von Hohnstein-Sonderhausen by marriage, in America declined into rural Appalachian preachers from whom Johnson’s mother was descended.

[18] And how supine, spineless, and gutless the bastards are.

[19] Jefferson. Try to keep up, folks. I don’t ask much.

[20] Adams, my 13th cousin seven times removed.

[21] Washington, my ninth cousin eight times removed.

[22] Hamilton, my eighth cousin seven times removed.

[23] Madison, my eighth cousin seven times removed.

[24] Truman, my 13th cousin thrice removed. The reference is to Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).

A Republic … if you can keep it.

Political violence, whatever its source or support, its affiliation or who are its apologists, is never acceptable in this Republic. We do not and cannot permit it, any more than we can and do permit politics to go about in uniform or in vestments. Nor does it matter to our purpose ‘cui bono?’, or if the conspiratorially minded obsess over to which party any given incident is more convenient. Nor ought support for any candidate or party to increase or decrease owing to such an act: that does nothing save to reward, and thus to encourage, political violence. Any given party, any given candidate, remains either worthy or unworthy of office when judged on character and principles, or the lack thereof, or, where there is a choice to be made, which is more lacking in character or principle. Whether your reaction is glee at a violent act or glee that it was partly or wholly foiled and is thus become politically useful to whichever side you support, you are failing as a free citizen in a republic. Violence remains utterly unacceptable, whether you think in a partisan madness that a politician or a party was preserved by Almighty God or that the Devil looks after his own; that a party or politician nearly became or attempted to appear to be Lincoln, or Horst Wessel. You all of you need to do better. Political violence; its encouragement or embrace; your allowing it to influence your vote; your obsession with imagining some overarching occult meaning in it: all of these unfit you for liberty, and, if indulged, make you one who deserves to lose the freedoms to which you pay lip service.

You are all to cease this nonsense at once.

Beryl-ing down the highway (and presumably flirtin’ with disaster)*…

Lost power MON 8 JUL. Got it back in fits and starts about 15 hours later. Which is more than a lot of town can say, including, critically, no few shops. Got Internet back only on FRI 12 JUL. (First site checked: MLB.com, of course.) Also on FRI, the family had to bid farewell to the bestest and goodest girl ever, after 17 years: Shadow is now in whatever celestial field awaits Very Good Dogs. (I see that on WED 10 JUL, whilst I was incommunic-avocado (Tacit Guacamole’d be a great name for a band), my alma mater, so-called (a real mutha these days, yes; but not a kindly one) was closed for a bomb threat. Hmph.) None of this was the best kickoff to my birthday. Still, it did happen all the same. As things calm down, I’ll be back to explain the opinions in Loper Bright; City of Grants Pass; Fischer; Corner Post; Trump; Jarkesy; and Moody v Netchoice to those who think they understand them. Keep those still dealing with the sequelae of Beryl in mind, and I’ll work on catching up.

___

* And you are too, baby. It ain’t for everybody.

The means of Grace and the hope of Glory: praying the Daily Offices

Today is the Sunday after Christmas Day. It is also, this year, New Year’s Eve, in the civil calendar; which means it is the Eve, the Vigil, of the Feast of the Circumcision.

From that, it should be obvious that this is a post of limited interest—as regards, at least, its likely audience, if any. More specifically, it is directed to that subset of my readers and listeners who are Christian; who are Christian in a liturgical tradition; and, to be perfectly blunt, are, largely, my fellow Anglicans. We are going to speak briefly about the Daily Offices and the Book of Common Prayer.

I am an aging man. I am not in the best of health. It is impressed upon me, as it is not always impressed upon us, that every day or any night could be my last in the body, without warning. This is something of which we ought all to be aware in ourselves, however young, however healthy; but, as Dr Johnson once said, the prospect of being hanged in a week concentrates a man’s mind wonderfully. We tend to give lip service, if we think of it at all, to the truth that any night our souls may be required of us; we rarely give more than lip service. Age and ill health motivate one to do better.

In any case, whether you attribute it in me to undignified fear or to hard-won experience, I read the Daily Offices to myself, Mattins and Evensong, Morning Prayer and Evening Prayer, daily. I find it useful, and I find it comforting. I do not insist that anyone else do. I am addressing myself to those who do.

To paraphrase Will Rogers, I am not a member of any organized religious denomination: I’m an Anglican. We are a disorganized lot. So, tedious as it is, it is practically a necessity that I put my cards on the table (exclusive of any aces up my sleeve) and further define my particular strand of Anglicanism. I am traditionalist and orthodox; I am a believer in the 1662 and the 1928; I do not believe in the validity of the ordination or purported ordination or attempted ordination of women to Holy Orders other than that of deaconess; I am conservative in my churchmanship, and High Church to the point of Anglo-Catholicism, but a resolutely Prayer Book High Churchman. I think Douglas Adams was inadvertently right when he wrote that 42 is the answer to life, the universe, and everything: because 42 is the sum you arrive at when you add together the three Creeds and the 39 Articles. I equally believe that the 39 Articles are to be read in the light of their Tractarian exegesis. I believe in the Lambeth Quadrilateral and the Anglican tripod of Scripture, reason, and tradition. I adhere to branch theory on an Anglo-Catholic basis.

You may very well not. So, for the handful of you who have not yet closed your tab, closed your entire browser in disgust, or thrown your device across the room in a fit of righteous anger, denouncing me and all my wicked views, let’s go on.

I am a firm adherent of the BCP. Certainly this is in part a function of literary taste: the 1662 and the 1928 are far better written, from a purely secular view, a purely literary view, than are the meager substitutes which have been proffered us in their place. But the Church is not a literary society. It must however be a literate one: and that must include theological, and thus liturgical, literacy. Lex orandi, lex credendi—and it ought to entail lex vivendi as well—is not merely a Latin tag to be used so we sound clever. But the point of the Book of Common Prayer is that it is a book of common, of communal, prayer. Explicitly or implicitly, it contains a very full and rich diet. But private prayers deserve our attention. Sometimes, specificity is called for, not in order to tell the Almighty something He may have overlooked, but to recall it to ourselves.

The C of E may be on life support; TEC is DOA and awaiting only the declaration. And the difference is that the C of E has AEO. TEC does not: wherefore, ACNA. That is one way in which Anglicans in the United States can find themselves without a local parish which they can in good conscience attend; and thus be thrown back upon the resource of the BCP and upon daily private devotions. Health issues may do the same; or so may the press of duty to others: no one rightly expects the paramedic, the veterinary surgeon, the soldier, the farmer, the lawyer, or the physician always to be in a position to make it to Mattins and Evensong every day. Yet it is a good and healthy thing for all of us daily to say the Offices, however privately. The 1928 US BCP contains forms for family Mattins and Evensong, and even short forms of both for when time and duty presses. I alternate those every other day; you might be interested to try it yourself. These include extra collects; the 1662 has admirable set Prayers and Thanksgivings; yet health, bodily dexterity, declining vision, or duties in service to our neighbors, may even then leave us pressed for time.

I am not here to tell you what to do: I am a mere layman, and I am not a particularly good man. I have neither priestly nor moral authority to lecture you or to sit in judgment upon you. I am here to tell you what I do, which you may or may not find helpful or of use in your own practice of specifically private prayer.

There are the psalms, both those of the liturgical and those of the monthly day, the lessons, and the Gospels and Epistles appointed for each day, and I begin with these. I do so, as to the psalms, in their regular rotation, precisely so as not to concentrate only on those which are personal favorites of mine or which do not confront me with discomfort and the need of self-reflection. One month, it should be the first of the daily psalms, in the next, the second, in the next, the third, and so on. And let me pause to point out that at this season especially, it is easy to see a special genius in the choice of the readings appointed for each day and each season. Just now, we got the 40th chapter of Isaiah and the second of Saint Luke at the same Mattins: which means, respectively, a significant chunk of the libretto for Handel’s Messiah and the source of the Nunc dimittus. Try reading those without humming.

And then of course there are the formularies, there is the text. I do not recommend omitting or treating as optional the daily collect. It comforts, it helps, and it is invariably brilliantly written, both literarily and theologically as a matter of liturgy.

Yet I have implicitly promised you what is nowadays called a ‘hack’ for your use when time presses or when the implicit needs to be made explicit. Well: here it is. In most cases, there is a collect for these things. We’re Anglicans: we have a collect for everything. All the same, you may not have the time or the bodily energy or the manual dexterity to collate all these collects and to read or say them.

Do not despair, and do not give up. Not all is lost. All is not lost. Nothing is ever truly lost. Not here; not in this endeavor.

Even in the shortest form, there are places and passages where it is not only possible, but is specially apt, to insert what should otherwise be omitted, to say what should otherwise go unspoken, to make explicit the implicit. A few days of familiarity in and from reading the Offices daily shall show you where these are.

Here, for whatever worth it may be to you, are the unspoken parts I say aloud.

I pray for the peace of Jerusalem and for the rest, the repose, of the faithful departed.

I pray God to deal tenderly according to His covenant with His people Israel; and to reform, and, having reformed, so to sanctify and stablish, His holy church: that she may once more be, and ever hereafter remain, holy, faithful, and orthodox.

I pray God that He mightily defend all free nations and peoples; that He grant swiftly, and without further effusion of innocent blood, complete and irreversible victory to Ukraine and to the State of Israel; that by His sovereignty, He prevent any successful use of weapons of mass destruction; that He liberate everywhere the oppressed, and cast down utterly, even unto the dust, all oppressors, aggressors, terrorists, and tyrants; and that He advance the cause of liberty and, with the victory of the free, make war to cease upon the earth.

I pray that He specially bless the United States, her president—rarely as I personally like or support any one of them of either party—, the Congress (same caveat), and the judiciary (need I say it?), turning her people again to our old love of liberty and reverence for the Constitution as we have received it; the United Kingdom, and His Majesty’s Government and judges, continuing the same united and a kingdom, and making the same swiftly to prosper outside the EU; the ROC, the ROK, Ukraine, the State of Israel, the NATO member states, and the Commonwealth nations; in all cases granting wisdom to their governors and so moving the hearts of their peoples that no unworthy person ever, or ever again, hold any office of trust or profit thereunder.

I pray that He of His mercy send all of us in our several necessities and situations temperate and seasonable weather, defending us from all natural disaster and granting us plenty and cheapness in place of dearth; and that He lift from us the current poxes, plagues, and pandemics.

I pray His comfort and blessing upon family, friends, and neighbors, by name; upon the Bench and Bar—laugh it up, fuzzball, but the less you think of them the more you must admit they need it—; upon all healers, and upon all creators, that their hearts may be turned to Him and their talents to His glory and service; upon all domestic and companion animals, beasts, cattle, and livestock, and all His animal creation; upon the congregation of His poor, the homeless and neglected of men, those who walk in mental or spiritual darkness, the old, the ill, the shut-in, the dying, all those in hospital and all those facing, undergoing, or recovering from medical intervention; all women laboring of child; all those fighting in a just cause; all who travel, by land, sea, or air; the widow, the orphan, and all them that do mourn; the refugee and the exile; all prisoners and captives, particularly of war, and all hostages, that He restore them swiftly and unharmed to their families; all those, by name, whom I know to be in difficulties of health or otherwise; and all those who, in this transitory life, are in trouble, sorrow, need, sickness, or any other adversity.

And I am not ashamed to admit that I pray for myself that He continue me, day by day and night by night, in the body until I shall be at least 80 years in age, without further hospitalization or the need of it, without being a further burden upon others, without further indignity, without further diminution in health, faculties, or material circumstance, doing daily and being able daily to do the duties of the day and to redeem the time thus given; and that, when, after I am 80, I do come to die, I not die alone and unattended. And I pray the same for all others.

(Personally, and I am not ashamed to admit this either, I also pray every year that the Astros win the World Series, and, in every Ashes year, that England win the Ashes; but this is clearly an instance in which we should all strive for unity-in-diversity, and you may support different teams and sides. Turn right at the next clivus and merge onto the Via Media. There: there’s your Anglican humor for the day.)

Some, all, or none of this may be of use or interest to you; take from it, if anything, what your conscience dictates and which may be of service to you. In any case, without any pretense on my part of special piety or special goodness, neither of which I possess, I hope you do not think it an impertinence to know that you are, by name, or by classification, or by category, in my prayers. And I trust that you are all doing well, as we have begun the new year of the Church and are beginning the new year of the civil calendar, and that you have all the blessings that are implied, here where I live, by black-eyed peas for good fortune, cabbage for folding money, notes, and sliced carrot for coins on New Year’s Day.

The Lord bless us and keep us. The Lord make his face to shine upon us, and be gracious unto us. The Lord lift up his countenance upon us, and give us peace, this day and evermore. And may the grace of our Lord Jesus Christ, and the love of God, and the fellowship of the Holy Ghost, be with us all evermore. Amen.

Remember, remember

Another Guy Fawkes Night: Bonfire Night. ‘The only man who ever went into Parliament with honest intentions.’ V-for-interminable-comic-book-and-cinema-preachiness. Fireworks. 1605 and All That.

(Or, as I privately call it, that time when a bunch of my second through sixth cousins, against the urgings of various fifth cousins, tried to blow up my first cousin and a lot of remoter kinsmen … and failed: very conveniently for another lot of fourth and further removed cousins, and to the detriment of a right smart of innocent and uninvolved fifth and remoter cousins.)[1]

After four centuries in America, I can’t say that I or my family have made much of Bonfire Night, as a rule (not counting that Bonfire Night with that nice, jolly-hockey-sticks Home Counties young lady in about 1983 who was doing a semester abroad at Sweet Briar and turned out to have the same hobbitish appetite for real ale and fried mushrooms as had I…).

Yet whether the Gunpowder Plot was what it is believed to have been or was a Cecilian frame-up from the off, it has lessons for us.

The first is that politics must never be allowed to go about in vestments any more than in uniform.

The second is that odium theologicum is no legitimate ground or basis for a revolution, and does not meet the criteria set out by a ninth cousin of mine when he set out that, The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants. It is its natural manure.

And the third is that avoidable civilian casualties are absolutely off-limits and terrorism is never the answer—particularly against an even remotely democratic system, and least of all on religious or sectarian grounds.

So … it turns out that Guy Fawkes is relevant after all, and specially so just now. Read, mark, learn, and inwardly digest this lesson.

[1] This is not bragging, or a source of pride: I do not share in my ancestors’ crimes or glories, and have nothing to do with any of it. But the uses of genealogical awareness shall be important in a later essay on writing…

For all the saints, who from their labours rest

Today is the Eve of All Hallows’ Day, Hallowe’en, the first day of the three days of Allhallowtide, the Fast before tomorrow’s Feast which begins with the Vigil this night, with the First Evensong of All Saints’ Day, Hallowmas. Allhallowtide shall then conclude, as ever it does in the eternal cycle of the Church Year, the Kalendar, on the third day, the day after tomorrow, with the Feast of All Souls. And in the Commonwealth, for obvious reasons, Allhallowtide is held to stretch to St. Martin’s Day or the Sunday nearest … because that is now Remembrance Sunday, and All Saints include all martyrs fallen in the good fight against evil.

There is even amongst nominal Christians nowadays much confusion and much ignorance surrounding Allhallowtide; and even more amongst those of other faiths and none. I shall, as usual, explain. Not everyone shall be interested; but even they deserve to be better informed, at least. And God He knoweth they’ll not hear it from, say, TEC in these thin and piping times.

The Eve of All Hallows is not about costumes or chocolate. (Which is a relief to those of us who don’t play dress-up and are diabetics.) It is not about paganism or pranks. And it accordingly does not deserve the commination of the First Redneck Church of Jesus Christ the White Republican ’Murican, or the co-option of the Coven of Blotchy Drumming Wymyn and that sort, which it gets from the mudsills and the morons, the Calvinists and the cranks and the Klan of Star-soul Karens, every year.

(Charity is not my strong suit. Lack of charity is one of my besetting sins.)

Allhallowtide is about saints, not Samhain.

Has it been commercialized? Yes. So have the Feasts of the Nativity and of the Resurrection, the two observances of the Church Year on which merchants of every faith and none join in a rousing rendition of ‘What A Friend We Have in Jesus’. That does not invalidate the Feasts.

Has a right smart of guff and folk-tradition and vaguely heathen-hangover nonsense been attached to it by the commons? Yes. The same is true of Christmas and Easter; and is in all cases immaterial.

So let us consider—and keep—this Feast as it is.

Celtic and Northumbrian Christianity—the real thing, not the retrospective fakelore—began to keep the Feast of All Saints on 1 November rather than on other dates—many of which, frankly, interrupted the agricultural calendar intolerably, which was not so great a problem for the new date—in the late VIIIth Century; and Alcuin introduced this date to Charlemagne, and it was then adopted throughout Western Christendom. There is no good evidence of the date’s having anything to do with any pagan ritual or observance falling on or about the date.

There are many traditions in many times and places amongst many folk and many faiths which involve mumming and guising. But it should be rash to assert that the costumes associated with All Hallows’ Eve derive from these. The evidence is that part at least, and likely the purest source and headwater, of the tradition is simpler. Most cathedrals at the time, and some abbeys, had relics to display; not all major churches, even in shire towns, even collegiate churches, had relics, and lesser parishes in market town and village almost never had. But all churches had and have patronal dedications. On All Saints’ Day as at other times, one way of reaching the congregation, in days almost as illiterate or subliterate as our own, was to stage a liturgical dramatization of the Lessons or the Gospel for the day appointed: and these involved some degree of stage costuming. Even without a play, in the absence of relics the patronal saint and all saints could be symbolized and recalled to immediate memory by mimesis: a mimesis representing the saint with that saint’s usual attributes in ecclesiastical art, which commonly involved the instruments of the saint’s martyrdom if the saint were, as many were, a martyr.

If your parish were dedicated to Our Lady, the BVM, or to St George, say, neither being a martyr, this was easily done so far as props and costuming went. If the patron saint of the parish were St Lawrence, dress a chorister as a deacon and let him carry a gridiron; if, as was likely in East Anglia, he were St Edmund King and Martyr, stick a few blunt arrows through the deacon’s surcoat and put a tinsel crown on him. St. Margaret of Antioch was a bit trickier: where do you find a stuffed dragon? St Bartholomew was readily enough handed a flensing knife; but the butchers, the Fleshers’ Guild, might want to sponsor his stage depiction by providing also a flayed hide.

After all: ‘all saints’, as a class, includes the subset ‘martyrs’, and many of these ‘red’ martyrs. All saints have won through to their crowns by resisting and combating temptation and the forces of Evil. And liturgical drama had a prop room full of prop swords and devils’ costumes ready to hand.

Those today who shriek But Thank of them Chil-derrrrn at the very idea of gory modern Hallowe’en costumes, secular as these are, should break down gibbering if we sent the tots through the suburbs made up and dressed up realistically to resemble John Baptist and St Andrew and St Barbara and St James the Greater and St Magnus and St Thomas and Charles I King and Martyr.

As for the begging… The old tradition of All Saints is handing out soul cakes. No: this is not some occult rubbish or some cult o’ the dead. These are pastries marked with a cross: the Allhallowtide equivalent to hot cross buns on Good Friday, which day marks a far greater martyrdom. What is happening, beneath the modern secularized distribution of high fructose tooth-rot, is the distribution of alms.

And why? But … why?

Well: what is a saint? The class, All Saints, is comprised of the Church Triumphant and At Rest, whether officially recognized as saints for Kalendar purposes or not, and includes also the visible, mortal Church Militant, every Christian, in potential: the blessèd company of all faithful people, together with those proven faithful to the last and now in the immediate presence of God, the faithful departed. Of those yet in their earthly pilgrimage, you may have had a drink with one at the country club last month; you are very likely to have shared an aisle with one at Walmart; one may well be at the till at Whataburger; if there’s one at Tony’s, it’s likelier the busboy than the cash-splashing patron; one or two might even be amongst the lawyers and judges you know; one well might be the EMT who took you to the hospital, another, your mail-carrier, another, the neighbor you nod to but don’t care to speak much with, another, the stern teacher you still resent. You. Don’t. Know.

And neither does the Church. The Church—Roman, Eastern, and (continuing, trad, orthodox) Anglican—does not make saints. The Church Triumphant, that cloud of witness all about us (which ought to give you blushing pause), must be stuffed to the gunwales with those you’d never think should make it to Heaven, and be noticeably missing a right smart of people who were sniffily certain they’d be there with front-row seats.

What the Church Catholic does do is occasionally to recognize one or another saint as proper to be held out, with a Feast on the Kalendar, as a template and exemplar for and to the rest of us.

But because these are not by any means all of the saints … we have the Feast of All Saints. And although all the faithful departed are saints stricto sensu, we have also, because of the emphases of All Saints’ Day, the Feast of All Souls on the day next after, commemorating all the faithful departed.

At this point, of course, the usual Protty McProts start howling about ‘worshipping saints’ and ‘Mariolatry’ and ‘invoking saints’ and ‘Romish paganism’ and the rest of that happy horseshit. This is what comes of letting pettifogging provincial French notaries, Edinburgh bully-boys, and the like play at being theologians.

Living in the South as I do, I am all too familiar with this shrieking ignorance. These are not people who understand—or have ever heard of—the distinction between dulia and latria. (This was so of a right smart of rednecks in the Eastern Roman Empire as well, particularly in the Levant and particularly as to ikons, and the sorry result of it all was the invention if Islam.) The funny thing about these people—many of whom may well end up in the Church Triumphant after all, because we aren’t the ones who pick and choose—is that they are big on prayer-groups and telephone trees.

Saints matter to us because they are examples: yes. But they matter for other reasons as well, as very present helps in time of trouble. To be an actual Christian, rather than a nominal or cultural one, requires assent to a few propositions, and these are set out in the three creeds: the Apostles’ Creed, the Niceno-Constantinopolitan Creed, and the Athanasian Creed, the Quicunque Vult. Key amongst these, for our present purposes, is this affirmation:

And I believe one Catholick and Apostolick Church. I acknowledge one Baptism for the remission of sins. And I look for the Resurrection of the dead, And the life of the world to come.

What, then, is that one Church? It is the Church Triumphant and the Church Militant together: one. To be a Christian means to believe in the Communion of Saints: that mere death of the body does not separate us from our fellow Christians, who are as ready to aid us and pray with us as ever, their souls living forever on. This may not have occurred to the First Self-Righteous Church of Pascagoula, but it really ought to have done. Certainly it ought to have done to the little old blue-haired church ladies forever mixing the pleasure of gossip with the piety of enlisting as many of them as are available for petitionary and intercessory, common, communal prayer.

‘Maybelle? Charlene here. C’n you hear me on this-a-here line? I dunno iffen you heard ’bout the youngest Mutterspaugh girl … that’s right, Dreama, and whut her Momma was thankin’, that name and all … well, she’s done fallen preg’nt aaay-gin … I know, I know, but Jim Bob, ’sumin’ it’s his’n,  ain’t a-goin’ t’ he’p, you know he’s back in jail after that set-to in that nip-joint up Irish Creek … no, we done got a mite of money together to he’p with the baby, but Dr Byrd says she’s riskish … well, whatever she done, she needs prayin’ fer … you call Anna-Lee up, and Sally, and Betsy, I done called May and Nancy a’ready and they’re prayin’ for her … Oh! And Bob Ed’s down in his back again, and Becky cain’t hardly deal with that and him, and you know that son of theirs ain’t a-goin’ to lift ary finger, so they’s a-needin’ prayer, too…’

Congregants who mobilize half the congregation to pray for Darlene’s youngest and Bubba’s cancer screening but who will not invite the joined prayers of Wite and Alban and David and Patrick and Andrew and George, of Birinus, Petroc, Piran, Osmund, Swithun, Boniface, Cuthbert, Cedda, Chad, and Dubricius, of Winifrid, Jordan, and Kenelm, of the Blessed Virgin Mary and of Michael the Commander of the Host, and generally of Angels and Archangels and all the company of Heaven … seem to me to have booted an easy, inning-ending double play.

The Church does not pray, in the sense most mean by the word, to saints or angels; the Church prays, in that sense, solely to God. Even John Calvin, having some legal knowledge, ought to have known that much. Every lawyer is very familiar with this point, though he may never have applied it here. No lawyer regards the Court, including any appellate court you care to name, as divine; still less shall she mistake the temporary occupant of the Bench for Almighty God—though far too many judges seem to make that error. But every pleading ends with some form or other of a prayer for relief.

That is because prayer retains two meanings. As does petition, as anyone who has filed a lawsuit knows. Nowadays, these terms are usually used by non-lawyers only in respect of asking, begging, imploring God for something. Prithee tell me why that is, I pray. Of course, it is because in common demotic speech, we have shifted to asking, politely or otherwise, things of other humans, or simply demanding them (Karenism is rampant), and without formality. But in two of the Four Professions, Divinity and Law, these formalities are preserved and observed.

To pray, in that sense, of a saint that he or she add his or her intercession to God with yours and the whole parish’s for a particular end, is simply to ask politely: ‘Our departed sister Sidwell, our departed sister Juthwara, our departed sister Urith, who are now in God’s immediate presence, join, please, us, who are of the Church Militant, in imploring Him to comfort Jane in her distress, to heal Nell and Jim, to bless, console, and defend the congregation of the poor’ and so on.

The saints—All Saints—and the faithful departed—All Souls—are our families, those we love, our brothers and sisters in the Faith, our models and exemplars, our witnesses, and our helpers. (And no matter how much one likes, quaintly, the Baroque-cum-Rococo exuberance of Neumann’s Vierzehnheiligen Basilica, there are a right smart more of them than fourteen.) They are there to help. They doubtless do so without being asked; but there is no sin in asking. Politely.

And because they are who they are in all these roles, it is meet and right that we observe their Feasts and so call them to our remembrance that we may better model ourselves on their virtues and examples.

So do relax about Allhallowtide if you are a fundie white with foam (at the mouth); and if you are not Christian, do stop filching from it as an excuse to dress up with your freak flags flying and to bully people out of treats and carry on like Bassarids and Luperci. As for the rest of us … let us keep the Feasts.