Thursday, March 28, 2019

Part I

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The political left wants to pack the Supreme Court: What this threat to Chief Justice John Roberts teaches us about the role the court plays in the societal push to the left

There’s big change on the political horizon, that’s not really news. It seems that there is always big news on the political horizon, but that news is not always of the same importance. Something important is happening right now in reshaping America’s political discourse. This development is taking place on the left, primarily indeed exclusively, amongst those who are leading the Democratic Party.

Joshua Jamerson reporting for the Wall Street Journal offered us a new story with this headline on Tuesday: Groups Press Candidates To Change Court. But as you look at the story, that headline, is something of an undersell because the reality is the story’s not just about changing the court, meaning the nation’s highest court, the Supreme Court of the United States, but changing its composition, adding new seats that presumably liberal justices could fill to overcome a perceived conservative advantage over the last few years.

Jamerson writes, “Progressive activist groups are pressing Democratic presidential candidates to back proposals for changing the Supreme Court, a move that could draw protest from voters who don’t want to append the state institution.” Jamerson continues: “Pack the Courts, a recently formed group led by San Francisco State University professor Aaron Belkin, is trying to pressure candidates to support an expansion of the high court’s membership. Demand Justice, an organization that advocates for a more liberal judiciary is pushing for a broader set of overhauls, including term limits for justices and imposing some form of ethical guidelines such as making public their tax returns.”

As the Wall Street Journal story unfolds, it takes us back to 1869, that was when the Supreme Court became fixed with nine seats and that after some controversy. The earliest controversies over the composition of the court, the earliest presidential and political frustrations with the court came extremely early. By the time Thomas Jefferson was president of the United States, there was a successful effort to add seats to the Supreme Court to overcome what Jefferson and his allies saw as recalcitrance or opposition from the court. This is a battle that has continued throughout American history, but in 1869, the number was set by Congress at nine.

Interestingly, the constitution of the United States that establishes the three separate coequal branches of government. Again, as so often, I describe how that grew out of a Christian worldview understanding, an understanding about the fact that power corrupts as Lord Acton said, “An absolute power corrupts absolutely.” The division of power into three separate branches of government was to prevent what the founders of the American republic saw as the continual threat of a dictatorship, of a totalitarian form of government that would repress the people, the rights of citizens, but when the supreme court was established by the constitution, there was no number of justices set by the constitution itself.

Instead, that is a power left to Congress, but congress has learned through over a century of experience that tampering with that number is very, very dangerous. The reason for that is very simple to understand. If one party can use the number of seats on the Supreme Court to its advantage at any given time, then the opposing party can do the very same thing at some other time. And most classically, this was attempted in the 1930s by President Franklin Delano Roosevelt, who faced political disaster and who faced the opposition of the American people in the midterm elections that followed when he tried to pack the court precisely because the supreme court had raised all kinds of constitutional issues with much of Roosevelt’s much vaunted new deal legislation.

In one sense, as we shall see, Roosevelt lost the battle but won the war. But the number of seats of justices on the Supreme Court remain fixed at nine. As we’re looking at the contemporary issue, as the Wall Street Journal reports, there is increased pressure right now, not by accident, on those who are running for the Democratic presidential nomination to join the criticism of the court, to join claims that the current court is illegitimate and thus to use that argument to further radical calls for reconstituting the court with a different number of justices or with a very different understanding of their tenure.

Why would this become so important? Well, some of what is revealed in the major news coverage about this new effort tells us a lot about the past, a lot about the present, as well as the future. What about the past? Well, one of the things that becomes evident, is that a lot of the political energy on the left is now being directed to the Supreme Court because the Supreme Court of the United States, you could broaden that to the federal judiciary, is now seen as the last bulwark of any kind of constitutional or conservative opposition to many of the goals of the political left.

And here is another very interesting backstory. If you look at a great deal of the cultural, political, and indeed, social and moral change in the United States over the last several decades, the interesting thing is to track how much of it has not come either from the executive or the legislative branches. I will speak repeatedly on the briefing about the failure of Congress now for almost a half century to deal responsibly with the major issues confronting this nation. What is astounding in political terms is how little congress, congress under the control of either party, how little congress has done to make major legislative advance in this country.

Instead, so many of the issues that should have been handled through the legislative process and by the way, would have been a great deal more moderate had they been handled through the legislative process, have instead been driven by the federal courts, specifically, the Supreme Court. Take the issue of abortion. What has been the seismic legislation on abortion? There really hasn’t been any. Instead, we talk about a Supreme Court decision, Roe v. Wade infamously, in the year 1973. On the normalization of LGBTQ behaviors and relationships, you look to a series of decisions by the US Supreme Court, 2003, 2013 most importantly the Obergefell decision legalizing same sex marriage across the United States in the year 2015.

You will notice that if you are trying to drive the society to the left, the greatest engine for that political momentum has been the supreme court of the United States. Very tellingly, in some of the major media coverage, some of those who were pushing for the court packing scheme, the call to increase the number of justices in order to overcome conservative opposition, it’s interesting how many people will overtly say it is because the Democrats, and in this means the political left in the United States in this game, have lost control of the courts.

What’s so interesting there is that you see the acknowledgement that the left had control of the courts. You can’t lose what you never had. That raises some huge issues of worldview implication. The major shift in the reading of the constitution of the United States, the major division between more conservative and more liberal readings of the constitution didn’t emerge in the 19th century. It emerged very early in the 20th century. One of the major figures driving what was then identified as a progressivist interpretation of the constitution was President Woodrow Wilson.

He made many of those arguments when he was a political scientist teaching at Princeton. Later the president of Princeton University, before he became president of the United States. The Progressivist movement as it styled itself in the United States called for a reading of the constitution that was revolutionary. Previous to the rise of this movement, the interpretation of the constitution came by the normal means of interpreting a text. It was interpreted by its syntax, by its words, by its propositions, by its sentences, but the accusation was made in the early 20th century that that was preventing the development of the United States as a modern nation.

Very early in the 20th century, progressivists began to argue that the United States was being shackled by a constitution that was outdated, outmoded, and overly restrictive. The problem was then and is now for those who have a progressivist vision, that the people of the United States will offer no political support for replacing the constitution of the United States of America. So if the people will not support replacing the constitution, then if you’re going to try to move society in that direction, you’ve got to find a way to get to your political goals around the constitution.

The progressivist method of interpreting the constitution, the claim that the constitution should be seen as a living document, in which its meaning can evolve apart from the words, the sentences, the syntax and the grammar, that emerged quite early. Now, you fast forward through the trauma of the depression and the Second World War, you go through the expansion of the federal government that began in the early 20th century and then accelerated massively at the midpoint of the 20th century. And by the time you get to the 1950s and 60s, the interesting thing is that both major political parties in the United States, the Democrats and the Republicans had bought into the basic logic of this progressivist interpretation of the constitution.

The amazing thing is that there was a bipartisan consensus at the midpoint of the 20th century that the constitution should be read as something of a living document. But then that set the stage for the tremendous political re-shapings, the worldview reshaping of the United States during the last part of the 20th century. This is when the modern conservative movement arose, and the modern conservative movement arose at least in part by the accusation that both parties had mutually conspired to abandon constitutional government.

And so when you look at the last several decades of the Supreme Court, you look at a figure such as the late Justice Antonin Scalia, you have to understand that he came along in the company with other conservative constitutional scholars to make the argument that seemed revolutionary in the 1960s and 70s, and that is that the constitution should be read and interpreted and considered binding in the terms of the actual words of the constitution and with the original intention of the authors and framers of the constitution.

The interesting thing now is that that wasn’t then a winning argument among Republicans, not yet among establishment conservatives, but all that began to change with the moral revolutions and with the vast expansion of government and the administrative state in the 1950s, 60s and 70s. By the time you get to the end of the 1970s, conservatives have figured out that the only restraint upon the growth and the power of the federal government was that constitution, which was ratified in 1789. By the way, conservatives believe that the constitution can be changed, but it must be changed through the actual constitutional process, by the process of amendment that requires a vast, super majority of support across the United States. That is itself a constitutional protection.

The United States is not chained to its constitution. It’s constitution can be amended, but it can only be amended by a complicated process, deliberately complicated, that takes a great deal of time, by intention that will require a massive, super majority of support from the states. That’s all very necessary and of course also under most situations support from Congress as well. But as we’re looking at this situation, as we’re looking at the new story concerning the left now turning to calls to pack the courts, what we are seeing, and this becomes very evident in the actual statements made by many proponents of the idea, what we are seeing is a sense of panic that even if the left were to win in Congress, to win control of both houses of Congress, even if the left were to elect a president, they might be stymied, once again, as they were in the 1930s by a conservative supreme court.

But that then raises another issue that comes out explicitly in these articles. There really isn’t much political hope that there would be a reshaping of the court, at least not in the near future. The reality is that the American political process would make this extremely difficult. If republicans maintain control of even one house of Congress, it’s impossible. If a republican president is elected or reelected, it is impossible. At least without Democrats gaining massive super majorities that would be veto proof in both houses. That’s not politically likely and furthermore, it’s not likely to stand.

Beyond this, even most establishment Democrats would see the danger in this kind of plan because if they exercise it now, Republicans could exercise it in the future and even most establishment Democrats believe in the necessity of the integrity and stability of government. But the question is, is that the direction the Democratic Party’s going to take? The interesting and threatening thing in all of this is that with the Democratic Party lurching to the left, many of those older establishment Democrats are now in danger of being replaced by younger insurgents who are now openly calling for what amounts to revolution, not even just reformation.

They’re calling for a political revolution and they understand that the supreme court as it stands would not allow that revolution. But there’s something else here. There’s something more crassly political. Several of the major news sources reporting on this new initiative indicate that at least part of its purpose might be to send a message more than to bring about actual constitutional change. Now, what kind of message would they be sending and to whom would they be sending the message? You can actually figure this out pretty fast.

They are sending the message to the chief justice of the United States, John G. Roberts Jr. What’s the message? “You had better be careful about the course of Supreme Court decisions in coming years or there will be the threat that we will change the composition of the court.” Political pressure is a part of what’s going on in this headline dynamic. This was a part of what was going on in the court packing controversy with Roosevelt and the court in the 1930s. The signal was sent to Charles Evans Hughes, then the Supreme Court chief justice, “You better get along with the president or you’re going to face the threat of the reconstitution of your court.”

Openly, there are now some figures in the Democratic Party who were saying that’s the signal that needs to be sent to Chief Justice John Roberts. Now, whether he will get the signal was another matter entirely, but what they are relying on is the fact that Chief Justice Roberts has been very clear about his concern for the integrity and the prestige of the court. That’s what they’re threatening. They’re threatening it openly and as we seek to look at the headlines, the worldview analysis, that threat is an indispensable part of understanding the story.

Part II

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Once a society begins to legislate the invented rights of the LGBTQ revolution, the constitutional protection of the God-given right of religious liberty is jeopardized

Next, we shift to another issue, which is likely to come once again before the Supreme Court of the United States. We’ve often remarked upon the fact that in the oral arguments for the Obergefell decision that eventually legalize same sex marriage, several justices of the supreme court asked the officials then making the case for same sex marriage, whether or not this would lead to an inevitable collision with religious liberty. Justice Samuel Alito, Chief Justice Roberts, ask those questions directly, and as we have often cited, the solicitor general of the United States then making the case for the Obama Administration for the forced legalization of same sex marriage, when ask if there would be an inevitable collision, he said it will be an issue and furthermore he spoke with words that can only be interpreted as threatening.

Furthermore, the general environment is threatening. The entire complex of the culture, especially amongst the cultural productives and the cultural creatives, the cultural authorities are all pushing institutions, organizations, individual citizens to get in line. There’s pressure on big business and big business has now reached the tipping point where businesses now solidly behind the LGBTQ revolution. Company by company, they’re getting in line and they’re sending the signals that they’re quickly getting in line. Universities, academia, think tanks, you go across the country major institution after institution is signaling that it’s either giving up or joyously celebrating joining the moral revolution.

But the standouts of course are amongst communities of conviction. Most importantly, most crucially of my concern, would be the future of Christian colleges and universities. The question as to whether or not religious colleges will be allowed, recognized by religious liberty to have the freedom to order themselves by their own religious convictions. I have to use the phrase religious conviction because this isn’t limited to evangelical Christians, it is a claim that has to be extended. Religious freedom is a right that must be recognized for all communities of conviction.

This is an issue for Muslims in America. It’s an issue for Orthodox Jews in America. It’s an issue for traditional Catholics holding the Catholic teachings in the United States and of course it is an issue for biblical Christians for Evangelical Protestants. What makes this very interesting is the question of how we should respond. How should we respond to the challenge that looming before us as anti-discrimination legislation that is inevitable? This has led to a very interesting development and an ongoing controversy amongst some who would claim evangelical identity.

Back in December, Yonat Shimron, writing for Religion News Service offered an article with the headline, “A push for compromise on LGBTQ protections may tear evangelicals apart.” Now, what Yonat Shimron is writing about is an effort that goes by the name of fairness for all. Now, when you get to name something, you name it to your advantage. Who would be against fairness for all? Well, the answer is you better look closely at what’s being proposed. Many are now proposing coming from evangelical circles that the way to deal with this, the way for evangelicals to respond to this is to force some kind of compromise or at least to achieve some kind of compromise with those who are pushing coming from the LGBTQ community for anti-discrimination and sexual orientation and gender identity legislation.

The model that is often held up here is the State of Utah, where officials of Mormonism, of the church of Jesus Christ, of Latter Day saints, as it calls itself, reached an agreement with LGBTQ activists on nondiscrimination legislation that was eventually adopted by Utah state government. Now, what would be the compromise? The compromise comes down to this. It is a carve out for religious institutions of the right to discriminate on the basis of sexual identity, of gender identity and sexual orientation issues, whereas those religious organizations in Utah, that meant predominantly the Mormon institutions in church, would lend their support politically to the nondiscrimination legislation.

That’s the deal. That’s the promise. If we will only compromise, we’ll be able to reach legislation that will represent and will achieve fairness for all. I have criticized these proposals and they are back in the news again because of a resolution adopted in recent days by the national religious broadcasters indicating that they do not intend to join any such effort. We have to understand why the effort would be so dangerous. It’s dangerous because of this.

Once a society buys into the logic of SOGI legislation, that’s Sexual Orientation or Gender Identity Legislation, then religious liberty becomes only a conditional tentative reality. It’s only respected in so far as there’s going to be this carve out. The constitutional protection of religious liberty is instead conditionalized and what triumphs is this new invented right of sexual expression, sexual orientation and gender identity. The invented rights of the LGBTQ revolution invented largely by efforts of the Supreme Court, again, not by anything in the constitution, but my claims of rights discovered now in the constitution, that’s a big threat to any kind of community of conviction.

Is a big threat to whether or not religious colleges and institutions can continue to operate according to their conviction. But wait a minute you say. The compromise says that Christian colleges, that religious institutions would be able to continue to operate on their conviction, so what could be the problem? The problem is that all other believers are simply thrown under the bus, so to speak. This would protect explicitly religious institutions, but would effectively compromise if not deny the religious liberty interests of other forms of Christians in the public square and in the marketplace.

Ryan Anderson of the Heritage Foundation answers this convincingly. “One fundamental problem is equating coercive anti-discrimination laws with permissive religious freedom laws.” Anderson says, “Imposing a bad coercive policy on everyone while exempting select faith-based institutions is anything, but fairness for all.” “Anti-discrimination laws,” he continues, “are about the government coercing people to live according to the majority’s values. Religious Liberty laws are about removing government coercion and allowing people to live by their own beliefs. While there can be good justifications for certain anti-discrimination policies, there is no human right to them. Religious freedom, however, is a human right. Fairness for all mistakenly conflates these rather different concepts.”

Another point that Ryan Anderson helpfully makes is that exemptions do not make a bad policy into a good policy. My point in raising this issue is that Christians should think very, very carefully about what we actually believe about religious liberty. We should demand the reading of the US constitution to recognize and to respect religious liberty in the very way it was framed in the constitution ratified in 1789. Over against the threat of newly more supreme rights, we need to point back to the fact that the American experiment and ordered self-government is predicated upon the fact that government will respect the religious beliefs of its citizens.

By the way, it’s very important that Christians never say that the US constitution offers to us religious freedom or that it grants to American citizens religious freedom. The Christian worldview affirms that God, the Creator, endowed human beings with religious liberty. Government is merely to respect what the Creator has given. Governments do not create rights. Governments do not invent rights. Governments are only to respect and honor rights. It is not a plausible argument that a government has granted a right. It is merely to respect them.

Any government that can grant a right or can invent a right can take a right away. These fairness for all proposals now have the support of some organizations including the council for Christian colleges and universities and the National Association of Evangelicals. I see this as a very dangerous turn. The last thing Christians can afford to do in this cultural context is to decide that it is to our advantage to try to retain just a little bit of religious liberty where we can rather than defending it comprehensively for all people everywhere all the time.

You can count on this. These kinds of efforts will not be limited to Utah nor to some kind of abstract to religious political conversation. This issue is going to land the locally. We can only hope that we are ready.

Part III

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Is morality relative or absolute? How a recent headline in the Wall Street Journal reveals that, even in a postmodern world, moral categories like ‘evil’ exist

Finally, an article that appeared as an editorial in the Wall Street Journal. What’s interesting about the editorial is the language invoked, the title of it: “The Internet and Evil.” The editorial board of the Wall Street Journal in this past Thursday’s edition of the paper is looking at the question as to whether or not live streaming capacities on the Internet can be restrained in such a way as to prevent horrible things such as the mass shootings that took place in New Zealand from being live streamed.

There are not political calls to shut down the entire technology, but as the editorial board of the Wall Street Journal points out, the calls to shut down this technology, well, they’re not likely to work because like Pandora’s box once something like this is developed and it’s out there, it’s not going to disappear. That’s not even the main reason I raised the issue. I raised the issue because there are only four words in the headline of this editorial, “The Internet and Evil.” Now wait just a minute. Where did that word evil come from? Aren’t we living in a time of moral relativism? Aren’t we living in a postmodern or even a post postmodern era in which clear moral categories like evil don’t have any place?

Well, all of a sudden here it shows up again. Just another indication of the fact that we live in a moral universe created by a self-existent, self-revealing God who made that moral universe unavoidable. Eventually, even where you might have academics who say there’s no such thing as evil using the terminology, the vocabulary of evil reflects some kind of primeval, some kind of outdated mentality. Until something happens in which a moral verdict is demanded and all of a sudden the editorial board of the Wall Street Journal primarily driven by interests other than speaking morally to every issue can’t help using the word evil. That ought not to pass without our notice.